Supreme Court of California Justia
Citation 47 Cal. 4th 1008, 222 P.3d 186, 103 Cal. Rptr. 3d 733

People v. Kelly

Filed 1/21/10



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

S164830

PATRICK K. KELLY,

Ct.App. 2/3

Defendant and Appellant.

No. B195624



In re

Los Angeles County

Super. Ct. No. VA092724

PATRICK K. KELLY

on Habeas Corpus.



Health and Safety Code section 11362.77,1 which is part of the Medical Marijuana

Program (MMP) (§ 11362.7 et seq.), prescribes a specific amount of marijuana that a

“qualified patient” may possess or cultivate. We granted review to determine whether

this aspect of section 11362.77 is invalid under California Constitution, article II,

section 10, subdivision (c), insofar as it amends, without approval of the electorate, the

Compassionate Use Act (CUA) (§ 11362.5), an initiative measure adopted by the voters


1

All further statutory references are to the Health and Safety Code unless otherwise

indicated.

1


as Proposition 215 in 1996. We conclude, consistently with the decision of the Court of

Appeal below (and with the position of both parties in the present litigation), that insofar

as section 11362.77 burdens a defense under the CUA to a criminal charge of possessing

or cultivating marijuana, it impermissibly amends the CUA and in that respect is invalid

under article II, section 10, subdivision (c). We also conclude, consistently with the

views of both parties in the present litigation, that the Court of Appeal erred in

concluding that section 11362.77 must be severed from the MMP and hence voided.

I.

In 1996, the California electorate approved Proposition 215 and adopted the CUA,

which provides: “Section 11357, relating to the possession of marijuana, and Section

11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a

patient‟s primary caregiver, who possesses or cultivates marijuana for the personal

medical purposes of the patient upon the written or oral recommendation or approval of a

physician.” (§ 11362.5, subd. (d).)2 By this and related provisions, the CUA provides an


2

The CUA provides in full: “(a) This section shall be known and may be cited as

the Compassionate Use Act of 1996. [¶] (b) (1) The people of the State of California
hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as
follows: [¶] (A) To ensure that seriously ill Californians have the right to obtain and use
marijuana for medical purposes where that medical use is deemed appropriate and has
been recommended by a physician who has determined that the person‟s health would
benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic
pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana
provides relief. [¶] (B) To ensure that patients and their primary caregivers who obtain
and use marijuana for medical purposes upon the recommendation of a physician are not
subject to criminal prosecution or sanction. [¶] (C) To encourage the federal and state
governments to implement a plan to provide for the safe and affordable distribution of
marijuana to all patients in medical need of marijuana. [¶] (2) Nothing in this section
shall be construed to supersede legislation prohibiting persons from engaging in conduct
that endangers others, nor to condone the diversion of marijuana for nonmedical
purposes. [¶] (c) Notwithstanding any other provision of law, no physician in this state
shall be punished, or denied any right or privilege, for having recommended marijuana to
a patient for medical purposes. [¶] (d) Section 11357, relating to the possession of

(footnote continued on next page)

2

affirmative defense to prosecution for the crimes of possession and cultivation. (See

generally People v. Mower (2002) 28 Cal.4th 457, 474 (Mower); People v. Wright (2006)

40 Cal.4th 81, 98 (Wright).) The CUA does not grant immunity from arrest for those

crimes, however. So long as the authorities have probable cause to believe that

possession or cultivation has occurred, law enforcement officers may arrest a person for

either crime regardless of the arrestee‟s having a physician‟s recommendation or

approval. (Mower, supra, 28 Cal.4th 456, 467-469.)

Nor does the CUA specify an amount of marijuana that a patient may possess or

cultivate; it states instead that the marijuana possessed or cultivated must be for the

patient‟s “personal medical purposes.” (§ 11362.5, subd. (d), italics added.) An early

decision construed this provision of the CUA as establishing “that the quantity possessed

by the patient or the primary caregiver, and the form and manner in which it is possessed,

should be reasonably related to the patient’s current medical needs.” (People v. Trippet

(1997) 56 Cal.App.4th 1532, 1549, italics added (Trippet).)

Despite — or, perhaps, because of — this judicial construction of the CUA,

questions persisted for both qualified medical marijuana patients and for law enforcement

officers relating to enforcement of and arrest for possession, cultivation, and other related

marijuana offenses. In 2003, the Legislature found that “reports from across the state

have revealed problems and uncertainties in the [CUA] that have impeded the ability of


(footnote continued from previous page)

marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a
patient, or to a patient‟s primary caregiver, who possesses or cultivates marijuana for the
personal medical purposes of the patient upon the written or oral recommendation or
approval of a physician. [¶] (e) For the purposes of this section, „primary caregiver‟
means the individual designated by the person exempted under this section who has
consistently assumed responsibility for the housing, health, or safety of that person.”
(§ 11362.5.)

3

law enforcement officers to enforce its provisions as the voters intended and, therefore,

have prevented qualified patients and designated primary caregivers from obtaining the

protections afforded by the act.” (Stats. 2003, ch. 875, § 1, subd. (a)(2).) In response, the

Legislature enacted the MMP (§ 11362.7 et seq.) to “[c]larify the scope of the application

of the [CUA] and facilitate the prompt identification of qualified patients and their

designated primary caregivers in order to avoid unnecessary arrest and prosecution of

these individuals and provide needed guidance to law enforcement officers.” (Stats.

2003, ch. 875, § 1, subd. (b)(1), italics added; see also Wright, supra, 40 Cal.4th 81, 93;

People v. Mentch (2008) 45 Cal.4th 274, 290 [the MMP “immunizes from prosecution a

range of conduct ancillary to the provision of medical marijuana to qualified patients”].)

Although the MMP did not literally amend the statute that established the CUA

(that is, § 11362.5), the MMP did add 18 new code sections that address the general

subject matter covered by the CUA. At the heart of the MMP is a voluntary

“identification card” scheme that, unlike the CUA — which, as noted, provides only an

affirmative defense to a charge of possession or cultivation — provides protection against

arrest for those and related crimes. Under the MMP, a person who suffers from a

“serious medical condition,”3 and the designated “primary caregiver”4 of that person, may


3

This term is defined by the MMP as including AIDS, anorexia, arthritis, cachexia,

cancer, chronic pain, glaucoma, migraine, persistent muscle spasms (including, but not
limited to, spasms associated with multiple sclerosis), seizures (including, but not limited
to, seizures associated with epilepsy), severe nausea, and other “chronic or persistent
medical symptom[s]” that “[s]ubstantially limit[] the ability of the person to conduct one
or more major life activities as defined in the Americans with Disabilities Act of 1990” or
that, “[i]f not alleviated, may cause serious harm to the patient‟s safety or physical or
mental health.” (§ 11362.7, subd. (h).)

4

A “primary caregiver” is defined by the MMP in part as “the individual,

designated by a qualified patient or by a person with an identification card, who has
consistently assumed responsibility for the housing, health, or safety of that patient or
person . . . .” (§ 11362.7, subd. (d).)

4

register and receive an annually renewable identification card that, in turn, can be shown

to a law enforcement officer who otherwise might arrest the program participant or his or

her primary caregiver. Section 11362.71, subdivision (e) of the MMP provides in full:

“No person or designated primary caregiver in possession of a valid identification card

shall be subject to arrest for possession, transportation, delivery, or cultivation of medical

marijuana in an amount established pursuant to this article [that is, the 18 new sections

comprising the MMP], unless there is reasonable cause to believe that the information

contained in the card is false or falsified, the card has been obtained by means of fraud, or

the person is otherwise in violation of the provisions of the article.” (Italics added.)5


5

Numerous other sections of the MMP concern identification cards. Section

11362.735, subdivision (a)(4), requires that each card contain a “24-hour, toll-free
telephone number . . . that will enable state and local law enforcement officers to have
immediate access to information necessary to identify the validity of the card.” Various
related provisions of the MMP govern matters such as card applications; means of
verifying necessary background information contained in applications; the processing by
county health departments of applications; annual renewal of and fees for cards;
expiration of cards upon nonrenewal; the obligation of state or local law enforcement
officers and agencies to accept an identification card absent reason to believe that the
card is false or fraudulent, or is being used fraudulently; and penalties for fraudulent
representations concerning, or use of, an identification card. (See §§ 11362.71-11362.76,
11362.78, 11362.81.)


The remaining provisions of the MMP address significant ancillary matters.

Section 11362.7 sets forth definitions. As explained in detail post, section 11362.77 —
the provision at issue in this case — establishes specific quantity limitations for
possession and cultivation, and also establishes a “safe harbor” protecting against
prosecution of those who legitimately possess amounts within those limits. Two sections
afford immunity from criminal liability for various crimes — they parallel the immunity
afforded by the CUA for possession and cultivation, and extend immunity for other
related offenses, such as transportation of marijuana. (§§ 11362.765, 11362.775.)
Section 11362.785 provides that no “accommodation” is required for the use of medical
marijuana during employment or while incarcerated. Section 11362.79 clarifies that
nothing in the MMP authorizes smoking of medical marijuana where smoking is barred
by law or in other circumstances. Section 11362.795 addresses the use of medical
marijuana while on probation, release on bail, or parole. Finally, section 11362.8 protects

(footnote continued on next page)

5

The “amount established pursuant to this article” is addressed in section 11362.77,

the statute at issue in this case. That section does two things: (1) it establishes quantity

limitations, and (2) it sets forth a “safe harbor” by authorizing possession of specific

amounts of medical marijuana within those specific limits.6

Subdivision (a) of section 11362.77 provides that a “qualified patient”7 or primary

caregiver may “possess no more than eight ounces of dried marijuana,” and may, “[i]n

addition, . . . maintain no more than six mature or 12 immature marijuana plants.” (Id.,

subd. (a), italics added.) The next two subdivisions of the same section provide qualified

(footnote continued from previous page)

designated primary caregivers from civil penalties or disciplinary actions by licensing
boards.

6

Section 11362.77 provides in full: “(a) A qualified patient or primary caregiver

may possess no more than eight ounces of dried marijuana per qualified patient. In
addition, a qualified patient or primary caregiver may also maintain no more than six
mature or 12 immature marijuana plants per qualified patient. [¶] (b) If a qualified
patient or primary caregiver has a doctor‟s recommendation that this quantity does not
meet the qualified patient‟s medical needs, the qualified patient or primary caregiver may
possess an amount of marijuana consistent with the patient‟s needs. [¶] (c) Counties and
cities may retain or enact medical marijuana guidelines allowing qualified patients or
primary caregivers to exceed the state limits set forth in subdivision (a). [¶] (d) Only the
dried mature processed flowers of female cannabis plant or the plant conversion shall be
considered when determining allowable quantities of marijuana under this section. [¶]
(e) The Attorney General may recommend modifications to the possession or cultivation
limits set forth in this section. These recommendations, if any, shall be made to the
Legislature no later than December 1, 2005, and may be made only after public comment
and consultation with interested organizations, including, but not limited to, patients,
health care professionals, researchers, law enforcement, and local governments. Any
recommended modification shall be consistent with the intent of this article and shall be
based on currently available scientific research. [¶] (f) A qualified patient or a person
holding a valid identification card, or the designated primary caregiver of that qualified
patient or person, may possess amounts of marijuana consistent with this article.”

7

A “qualified patient” is defined by the MMP as “a person who is entitled to the

protections of Section 11362.5 [the CUA], but who does not have an identification card
issued pursuant to this article.” (§ 11362.7, subd. (f).)

6

exceptions for even greater amounts. Subdivision (b) specifies that a patient may

“possess an amount of marijuana consistent with the patient‟s needs,” on condition that

the patient “has a doctor‟s recommendation” stating that the quantity set out in

subdivision (a) is insufficient for the patient‟s medical needs.8 Subdivision (c) specifies

that cities or counties may retain or enact guidelines allowing greater quantities than

those set out in subdivision (a). These aspects of section 11362.77 evidently were

designed to provide an objective, bright-line standard in lieu of the subjective, highly

individualized reasonable-amount standard set forth in the CUA as construed by Tripett,

supra, 56 Cal.App.4th at page 1549, thereby providing law enforcement officers with

uniform standards, and providing patients who meet those standards (and their primary

caregivers) with predictability. (See, e.g., Stats. 2003, ch. 875, § 1, subd. (b)(1).)

The MMP‟s safe harbor provision, subdivision (f) of section 11362.77, authorizes

possession of certain amounts of medical marijuana. It provides that a “qualified patient

or a person holding a valid identification card, or the designated primary caregiver of that

qualified patient or person, may possess amounts of marijuana consistent with this article

[that is, as provided in subds. (a)-(c) of § 11362.77].” By its terms, this safe harbor


8

Under section 11362.77 of the MMP, a physician‟s “recommendation” (or,

perhaps more accurately, statement) pursuant to subdivision (b) — that the eight-ounce
quantity set forth in subdivision (a) does not meet a qualified patient‟s medical needs —
is not required to be obtained prior to a defendant‟s arrest, but instead may be provided at
trial. (See Wright, supra, 40 Cal.4th 81, 96-97 [crediting a physician‟s trial testimony
that the amount of marijuana found in the defendant‟s possession at the time of his
arrest — slightly more than one pound — was appropriate in light of the defendant‟s
medical needs and his manner of use (primarily eating it rather than smoking it)]; People
v. Windus
(2008) 165 Cal.App.4th 634, 643 [although the CUA requires that “a defendant
must have obtained a recommendation to use medical marijuana prior to his or her
arrest[,] . . . that recommendation need not specify an approved dosage or amount of
marijuana that may be possessed. A doctor‟s opinion [under § 11362.77, subd. (b) of the
MMP] that the amount in the defendant‟s possession meets his or her personal medical
needs may be proffered at trial”].)

7

provision, which is not directly implicated on the facts of this case, would apply not only

to those who hold MMP identification cards, but also to qualified patients or their

primary caregivers — those persons who are entitled to the protections of the CUA but

who do not obtain a program identification card that may provide protection against

arrest.9

As alluded to above and further explained below, subdivision (a) of section

11362.77, by its terms, does not confine its specific quantity limitations to those persons

who voluntarily register with the program and obtain identification cards that protect them

against arrest. It also restricts individuals who are entitled, under the CUA, to possess or

cultivate any quantity of marijuana reasonably necessary for their current medical needs,

thereby burdening a defense that might otherwise be advanced by persons protected by the

CUA. Moreover, although subdivision (b) of section 11362.77 allows possession of a

9

In other words, pursuant to the MMP, persons designated by that statutory scheme

as “qualified patients” or their “primary caregivers,” but who do not register under the
program and obtain valid identification cards, would enjoy two sources of protection.
First, under the CUA, as construed in Tripett, supra, 56 Cal.App.4th at page 1549, such
persons may possess and cultivate any amount of marijuana reasonably necessary for
their current medical needs, and nothing in the MMP impairs those rights. (See MMP,
§ 11362.71, subd. (f) [“[i]t shall not be necessary for a person to obtain an identification
card in order to claim the protections of Section 11362.5 [the CUA]”].) Second, section
11362.77, subdivision (f) of the MMP would allow these same persons to “possess
amounts of marijuana consistent with this article” (italics added) — that is, up to eight
ounces
of dried marijuana (id., subd. (a)), or even more than that amount if a physician so
recommends (id., subd. (b)), or if a city or county allows (id., subd. (c)). By specifying
an allowable quantity, the MMP would enhance the protections afforded to those who are
covered by the CUA. And in other ways as well, the MMP would enhance protections
afforded to those who are covered by the CUA. As observed ante, footnote 5, the MMP
provides, in sections 11362.765 and 11362.775, immunity from criminal liability for
other crimes, in addition to the offenses of marijuana possession and cultivation. In the
present litigation, however, we address only the propriety of the MMP insofar as it
burdens a defense otherwise afforded by the CUA. We do not consider, or intimate any
view concerning, provisions of the MMP that would enhance protections afforded to
those who are covered by the CUA.

8

quantity “consistent with the patient‟s needs” that is greater than the amount set out in

subdivision (a), it affords this protection only if a physician so recommends — a

qualification not found in the CUA.

II.

Defendant Patrick Kevin Kelly has long suffered from, among other ailments,

hepatitis C, back problems (including ruptured disks), a fused neck, nausea, fatigue,

cirrhosis, loss of appetite, and depression. Over the course of 10 years, defendant

attempted to treat the pain caused by these conditions with multiple epidurals, pain therapy,

nerve simulators, and various medications — some of which were very costly, exceeding

his monthly income. Dissatisfied with this treatment plan, defendant decided to seek a

recommendation to use marijuana as permitted by the CUA.

In mid-February 2005, Dr. Eve Elting, a medical doctor employed by Medicann, a

physician-owned entity that evaluates patients who wish to use marijuana for medical

purposes, met with defendant. Dr. Elting reviewed defendant‟s medical records and a 15-

page form that defendant had been asked to complete, spoke with him, and then gave him a

written recommendation for marijuana use that expired in one year. Dr. Elting did not

recommend a dosage,10 and defendant apparently did not register under the MMP.


10

The California Medical Association (CMA) counsels physicians that because “the

federal government has taken the position that physicians may not lawfully prescribe
cannabis for medical use,” physicians should avoid offering advice concerning, among
other things, “how much medicinal cannabis the patient should take to obtain therapeutic
relief.” (Cal. Medical Assn. Legal Counsel, CMA On-Call Document No. 1315, The
Compassionate Use Act of 1996: The Medical Marijuana Initiative (Jan. 2009) p. 15
(hereafter CMA On-Call).) The CMA also advises: “A physician should be free to opine
that the allowable amount of cannabis does not appear to meet a particular patient‟s
medical needs, if the physician has a reasonable basis for such an opinion. However,
CMA does not advise physicians to specify the amount of cannabis that would be
consistent with the patient‟s needs.” (Id., at p. 16, italics and boldface omitted; see also
id., p. 20 [“A physician should avoid . . . [o]ffering a specific patient individualized advice
concerning appropriate dosage timing, amount, and route of administration (italics and

(footnote continued on next page)

9

Because defendant was unable to afford marijuana from a dispensary, he began to

grow it at home for his personal use. Defendant consumes approximately one to two

ounces of marijuana each week by smoking it, using it in a vaporizer, and consuming it in

brownies. He testified that the marijuana lessens his nausea, but that its effectiveness has

decreased over time.

In October 2005, a confidential informant told a law enforcement officer that he or

she suspected defendant of growing marijuana. Los Angeles County Deputy Sheriff

Michael Bartman went to the informant‟s home in the City of Lakewood, from which the

deputy could observe marijuana plants growing in defendant‟s backyard. Law

enforcement officers obtained a warrant, and thereafter Deputy Bartman, along with


(footnote continued from previous page)

boldface omitted)].)


The CMA‟s recommendation is itself based upon federal case law holding that,

because medical marijuana users and cannabis clubs operating under the CUA remain
subject to federal drug prosecution, the federal Controlled Substances Act gives the
federal government authority to withhold the ability to prescribe drugs from physicians
who act contrary to the “public interest,” including by the unlawful dispensing of
controlled substances such as “medical marijuana.” (See 21 U.S.C. §§ 823(f), 824(a);
Gonzales v. Raich (2005) 545 U.S. 1, 32-33; United States v. Oakland Cannabis Buyers’
Cooperative
(2001) 532 U.S. 483, 494 & fn. 7; see also Conant v. Walters (9th Cir. 2002)
309 F.3d 629, 634-639 [although physicians have a First Amendment-based right to
discuss the pros and cons of medical marijuana use with patients, if physicians advise
patients concerning how to obtain the drug, physicians risk triggering liability under
federal law for aiding and abetting the unlawful possession of a controlled substance].)


We note that the United States Department of Justice recently clarified its

enforcement priorities with regard to states, such as California, that have enacted laws
authorizing the medical use of marijuana. (U.S. Dept. of Justice, Memorandum for
Selected United States Attorneys (Oct. 19, 2009)
<http://www.justice.gov/opa/documents/medical-marijuana.pdf> [as of ____, 2009].)
Although this policy change may give physicians somewhat increased confidence in their
ability lawfully to recommend the use of marijuana for medical treatment, it is clear that
there has been no substantive change in federal law.

10

seven to nine other officers, arrested defendant and searched his home. They found seven

potted marijuana plants and additional marijuana plants growing in the soil outside the

garage in the backyard of defendant‟s home. They also discovered seven plastic bags,

most of which were vacuum sealed, each containing one to two ounces of dried

marijuana, along with a small amount of marijuana in a jar. In total, deputies seized

slightly more than 12 usable ounces of dried marijuana. Deputies also recovered a scale

and a loaded firearm from a nightstand in the master bedroom. No other traditional

indicia of sales — such as pagers, cell phones, “pay-owe sheets,” cash money in bills,

“nickel and dime bags” (bags used to hold small amounts of marijuana, to be sold for $5

or $10), safes, or sophisticated growing systems — were found during the search. Nor

was there any record of complaints by neighbors specifically concerning excessive foot

traffic at defendant‟s home.

Dr. Elting‟s original written recommendation for medical use of marijuana was

found in the master bedroom, and a copy was found taped to a wall of the garage. A

deputy called the phone number on the recommendation and was told that defendant had

a “prescription” to use marijuana. Defendant was arrested and charged with possessing

marijuana for sale (§ 11359) and cultivating marijuana (§ 11358).11


11

As observed earlier, defendant apparently had not registered under the MMP, and

lacked a program identification card that might have protected him from arrest. In any
event, even had defendant possessed such a valid card, it would not have prevented his
arrest on these facts, because more than eight ounces of dried marijuana was found in his
possession. (§ 11362.71, subd. (e) [protection against arrest applies with regard to
marijuana “in an amount established pursuant to this article”]; § 11362.77, subd. (f)
[authorizing possession of “amounts of marijuana consistent with this article” —
including subd. (a), which establishes an eight-ounce possession limit].) Nor does the
record suggest that either of the two exceptions set out in section 11362.77 applied to
authorize greater quantities. (See § 11362.77, subd. (b) [physician‟s statement that the
amount set out in subd. (a) is insufficient]; id., subd. (c) [city or county‟s authorization to
exceed the limits set out in subd. (a)].)

11

Prior to trial, defendant moved to bar the prosecution from eliciting testimony

concerning the quantity limitations set out in section 11362.77, on the ground that the

statute, in that regard, constitutes an impermissible amendment of the CUA. After an

extensive hearing the trial court denied the motion. The court explained that it would

instruct the jury pursuant to CALCRIM No. 2370, which, as the court observed, “doesn‟t

mention [specific] amounts,” and provides instead that the amount possessed or

cultivated must be reasonably related to the patient‟s current medical needs.

Nevertheless, the trial court ruled that the prosecutor would be permitted to question

witnesses concerning section 11362.77 and also argue to the jury, consistently with this

statute, that defendant possessed more than eight ounces of dried marijuana and yet

lacked a physician‟s recommendation for possessing more than that amount. In that

regard, the trial court ruled: “I think the Legislature has a right to — I don‟t really [think]

it changed the [CUA]. I think it further defined it. So, that‟s my ruling.”12

At the subsequent jury trial, Deputy Bartman testified that, in his opinion, the

marijuana recovered from defendant‟s home was possessed for sale. Bartman explained

that he reached this conclusion despite the circumstance that most of the dried marijuana

found at defendant‟s home was vacuum packed in relatively large quantities of

12

Because of its concerns about the potential vagueness of the “mature” versus

“immature” classification terminology established by section 11362.77, subdivision (a),
the trial court tentatively ruled that the provision was unconstitutional, and that the
prosecution would not be permitted to focus upon that distinction or inform the jury how
much defendant‟s seven plants weighed. Instead, the trial court ruled, the prosecution
would be allowed simply to note the circumstance that seven plants were found on his
premises. Thereafter, during trial, in response to testimony by defendant‟s expert
witness, the court on its own motion reversed its prior ruling that the statutory distinction
between mature and immature plants was unconstitutional. In addition, the court denied
the prosecution‟s further request to include, in the instruction modeled on CALCRIM No.
2370, the specific quantity limitations set out in section 11362.77. The court stated that
the prosecution was “free to argue that to the jury, but I‟m not going to put it in the
instruction.”

12

approximately one to two ounces, instead of the one-ounce and much smaller nickel and

dime bags typically used in sales. The deputy surmised that defendant had packaged the

marijuana in larger quantities in order to supply other sellers, who in turn would

repackage smaller amounts of the product into smaller containers. On earlier cross-

examination, however, it was revealed that Deputy Bartman had minimal experience

concerning marijuana used for medicinal purposes.

Defendant testified concerning his medical ailments and treatment efforts. He also

explained that he used the scale that was found in his bedroom to ensure that he never

took more than one ounce of marijuana with him when he traveled, because, although he

knew he was permitted to possess medical marijuana, he did not “know what the law is

on carrying it,” and he also understood that as a general matter “over an ounce is a

felony.”

Christopher Conrad testified as a medical marijuana expert for the defense.

Conrad explained that storing marijuana in vacuum-packed baggies is consistent with

medicinal use, and that the total amount found (slightly more than 12 ounces of “dried

mature processed flowers”) also was consistent with personal use. Conrad observed that,

assuming defendant consumed the marijuana found in his home at a rate of two ounces a

week, the supply would last him slightly more than six weeks.13 Dr. Elting testified

concerning her recommendation that defendant use marijuana to treat his ailments.

On cross-examination of both Conrad and Dr. Elting, the prosecutor, consistently

with the trial court‟s rulings, emphasized that section 11362.77 provides that a person

may possess no more than eight ounces of dried marijuana unless the person has a


13

Conrad testified that smoking marijuana produces a faster medicinal effect, but

that the effect does not last as long as when marijuana is eaten. On the other hand,
Conrad testified, approximately four times the amount of marijuana must be eaten in
order to achieve the equivalent effect of smoking it.

13

medical recommendation to exceed that amount, and he elicited the agreement of these

witnesses with his reading of the statute. This in turn prompted the trial court to instruct

the jury spontaneously, near the conclusion of the cross-examination of Conrad: “[J]ust

so the jury knows, because they‟re the ones that have to decide this case. This statute,

basically, says you can have eight ounces of dried marijuana. But it also says later on

that if . . . a city or a county says you could have more, then they could pass some law

that says you can have more. That‟s basically what it says.” Immediately thereafter, the

prosecutor elicited testimony from Conrad establishing that, as far as the witness knew,

the County of Los Angeles had not passed any law to “expand the eight ounce

limitation.”

Subsequently, the jury was given an instruction modeled on CALCRIM No. 2370,

which, consistently with the CUA, explained that defendant was permitted to possess or

cultivate an amount of marijuana reasonably related to his current medical needs.14

Notably, the jury was not instructed that, in the absence of a physician‟s recommendation

that eight dried ounces was insufficient, defendant had a right to possess only that

amount.

Thereafter, however — and again, consistently with the trial court‟s denial of

defendant‟s motion to exclude evidence of statutory quantity limitations, and with the

court‟s spontaneous comment to the jury during the cross-examination of Conrad — the

prosecutor in argument to the jury repeatedly stressed that defendant lacked a physician‟s


14

The jury was instructed as follows: “Possession or cultivation of marijuana is not

unlawful if authorized by the Compassionate Use Act. The Compassionate Use Act
allows a person to possess or cultivate marijuana for personal medical purposes when a
physician has recommended or approved such use. The amount of marijuana possessed
or cultivated must be reasonably related to the patient’s current medical needs
. The
People have the burden of proving beyond a reasonable doubt that the defendant was not
authorized to possess or cultivate marijuana for medical purposes. If the People have not
met this burden, you must find the defendant not guilty of this charge.” (Italics added.)

14

recommendation to possess more than eight ounces of dried marijuana. The opening

three paragraphs of the prosecutor‟s summation were as follows:

“This is, ladies and gentlemen, the final leg of the trial. The law is pretty simple in

this case. Whether or not you agree with the law, disagree with the law, it‟s irrelevant.

You have to follow the law. [¶] The facts are that the defendant has [a] physician‟s

statement that he can use marijuana for medical purposes. That‟s not in dispute, ladies

and gentlemen. . . . But, what‟s also clear is that the law says he can only have eight

ounces of dried [marijuana]. And testimony by the defense expert Mr. Conrad stated that

the amount that was recovered . . . was about . . . 12 ounces. [¶] Well, guess what?

Twelve ounces is . . . more than eight ounces of marijuana. . . . So what happens if the

defendant has more than eight ounces of the dried marijuana stuff? Then, there has to be

some evidence to show that the doctor recommended more than that. And there is no

evidence, ladies and gentlemen. It‟s not disputed that there is no evidence presented to

show that the defendant has any medical recommendation that exceeds the eight ounces.”

(Italics added.)

After further arguing that, in his view, the evidence demonstrated that defendant

was both using marijuana and selling it, the prosecutor continued: “If, for example, you

decide, well you know what? I don‟t think he intend[ed] to possess for sale. But, you

know what? What he can possess is only eight ounces. Remember, ladies and

gentlemen. So, the excess that he possess[ed], the other four ounces you can consider

that in the possession charge. . . .”

Thereafter, defense counsel‟s closing argument urged the jury to determine that

defendant neither sold marijuana nor intended to do so, and that the amount possessed

and cultivated by defendant was reasonable for his personal medical use and hence was

protected by the CUA. In response, the prosecutor, in his final summation to the jury,

argued that defense counsel was “asking you to be legislators” and “interpreters of the

law,” but “[t]hat‟s not your job here, ladies and gentlemen. Your job is to follow the law.

15

And the law says, whether we agree with it or not, the law says very clearly in black and

white, Health and Safety Code section 11362.77[, subdivision] (a), I‟m going to read it to

you right now. „A qualified patient‟ [—] we‟re not disputing that he‟s a qualified patient

[—] „or primary caregiver may possess no more than eight ounces of dried marijuana per

qualified patient. In addition, a qualified patient or primary caregiver may also maintain

no more than six mature or 12 immature plants per qualified patient.” The prosecutor

also read to the jury section 11362.77, subdivision (b): “ „If a qualified patient or primary

caregiver has a doctor‟s recommendation that [t]his quantity does not meet the qualified

patient‟s medical needs, the qualified patient or primary caregiver may possess an

amount of marijuana consistent with the patient‟s needs.‟ ”

The prosecutor asserted: “What does that mean? He can have eight ounces of the

dried stuff. We know he has 12 at least, he can have eight ounces of the stuff or [sic: and]

he can have six immature [sic: mature] plants. Evidence was that they found seven plants

in this particular case. But you know what? We’re not saying, no, you can’t have what

you need. That’s not what the law says. The law says before you can have more than

that you need a doctor’s recommendation. He doesn’t have a doctor’s recommendation,

ladies and gentleman.” (Italics added.) The prosecutor continued in this vein, and then

concluded: “Bottom line. . . . The law, it is what it is and we all have to follow it. [¶]

You‟re not to guess at why the Legislature [wrote] the law the way it is. It is what it is.

In this case you can’t have more than eight ounces, unless he has [a] recommendation

and he doesn’t have that.” (Italics added.)

The jury deliberated for approximately 90 minutes and found defendant guilty of

“possessing more than 28.5 grams [one ounce] of marijuana (§ 11357, subd. (c))” — a

lesser offense of the charged count of possessing marijuana for sale (§ 11359). The jury

also found defendant guilty as charged of cultivating marijuana (§ 11358). The trial court

placed defendant on three years‟ probation under various terms and conditions, including

that he serve two days in jail, less credit for two days already served.

16

III.

The Court of Appeal held, first, that section 11362.77 of the MMP, insofar as it

limits the amount of medical marijuana that a person protected by the CUA may possess,

constitutes an amendment of the CUA in violation of California Constitution, article II,

section 10, subdivision (c), which precludes legislative amendment of an initiative measure

unless the measure explicitly permits such an amendment.15 Second, the Court of Appeal

held that section 11362.77 is “unconstitutional” in its entirety — and “must be severed

from the MMP.”

Third and finally, addressing an issue concerning which we did not grant review,

the Court of Appeal determined that although the trial court properly instructed the jury

under the CUA that defendant could possess an amount of marijuana reasonably related

to his current medical needs, the court improperly permitted the prosecutor to elicit

testimony indicating that the quantity limitations set out in section 11362.77 applied to

defendant and to his defense under the CUA — and to extensively so argue to the jury.

In other words, the Court of Appeal concluded that the jury was informed, in essence,

that the quantity limitations set out in section 11362.77 overrode the CUA‟s guarantee

(confirmed in Trippet, supra, 56 Cal.App.4th at p. 1549) that a qualified patient is

permitted to possess and cultivate any amount reasonably necessary for his or her

medical needs. This, the Court of Appeal held, constituted prejudicial error: “We cannot

conclude that the jury found defendant guilty because [it] believed the amount of

marijuana he possessed and cultivated was not reasonably related to his medical needs, as

opposed to believing defendant was guilty because he had more marijuana than section


15

This constitutional provision reads in full: “The Legislature may amend or repeal

referendum statutes. It may amend or repeal an initiative statute by another statute that
becomes effective only when approved by the electors unless the initiative statute permits
amendment or repeal without their approval.” (Cal. Const., art. II, § 10, subd. (c).)

17

11362.77 says he may have. Defendant therefore is entitled to a reversal of the

judgment.”16

As explained in part IV. below, we agree with the Court of Appeal‟s first

determination — that section 11362.77 is unconstitutional insofar as it burdens a defense,

provided by the CUA, to charges of possessing or cultivating marijuana. But, as

explained in part V. below, we disagree with the Court of Appeal‟s second conclusion —

that section 11362.77 is wholly invalid, and that it “must be severed from the MMP.”

IV.

We first address the Court of Appeal‟s conclusion that section 11362.77 of the

MMP, insofar as that statute establishes quantity limitations, constitutes an amendment of

the CUA, in violation of California Constitution, article II, section 10, subdivision (c).

That provision (quoted in full ante, fn. 15) states in relevant part: “The Legislature . . .

may amend or repeal an initiative statute by another statute that becomes effective only

when approved by the electors unless the initiative statute permits amendment or repeal

without their approval.”

Significantly, as alluded to earlier, section 11362.77 of the MMP does not confine

the reach of its quantity limitations to those persons who voluntarily elect to register with

the program and obtain identification cards, but instead extends its reach to “qualified

patient[s]” and their “primary caregiver[s].” The term qualified patient is defined by the


16

Defendant also filed a petition for a writ of habeas corpus, asserting that his trial

counsel performed deficiently by failing to move to suppress evidence seized during the
search of petitioner‟s home pursuant to a search warrant. The petition asserted, in
essence, that the officers had a duty to investigate the possible existence of a physician‟s
recommendation for the use of marijuana, before a search warrant could be issued. The
Court of Appeal consolidated the writ proceeding with the appeal, and denied the writ,
explaining that, contrary to petitioner‟s view, our opinion in Mower, supra, 28 Cal.4th
457, 463-464, does not support the proposition advanced by petitioner. This issue was
not included in our order granting review in this matter, and we do not consider it.


18

MMP as “a person who is entitled to the protections of Section 11362.5 [the CUA], but

who does not have an identification card issued pursuant to this article [that is, the

MMP].” (§ 11362.7, subd. (f), italics added.) The term primary caregiver is defined by

the MMP as an “individual, designated by a qualified patient or by a person with an

identification card, who has consistently assumed responsibility for the housing, health,

or safety of that patient or person.” (§ 11362.7, subd. (d).) In other words, section

11362.77, on its face, sets quantity limitations not only for those persons who voluntarily

register under the MMP and hold a valid identification card that provides protection

against arrest. The statute also applies to and sets limits for all those “qualified

patient[s]” and “primary caregiver[s]” who are entitled under the CUA to possess or

cultivate any amount reasonably necessary for the patient‟s current medical needs. We

proceed to consider whether, in this respect, section 11362.77 constitutes an amendment

of the CUA, in violation of California Constitution, article II, section 10, subdivision

(c).17

A.

We begin with the observation that “[t]he purpose of California‟s constitutional

limitation on the Legislature‟s power to amend initiative statutes is to „protect the

people‟s initiative powers by precluding the Legislature from undoing what the people

have done, without the electorate‟s consent.‟ [Citations.]” (Proposition 103 Enforcement

Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1484 (Proposition 103

Enforcement Project).) In this vein, decisions frequently have asserted that courts have a

duty to “ „ “jealously guard” ‟ ” the people‟s initiative power, and hence to “ „ “apply a

liberal construction to this power wherever it is challenged in order that the right” ‟ ” to

resort to the initiative process “ „ “be not improperly annulled” ‟ ” by a legislative body.


17 All further undesignated constitutional references are to the California Constitution.

19

(DeVita v. County of Napa (1995) 9 Cal.4th 763, 776 [construing analogous right to enact

initiative county ordinances under Cal. Const., art. II, § 11, as governed by Elec. Code,

§ 9125]; see also Associated Home Builders etc., Inc. v. City of Livermore (1976) 18

Cal.3d 582, 591, and cases cited [construing analogous right to enact initiative city

ordinances under what is presently Cal. Const., art. II, § 11].)

At the same time, despite the strict bar on the Legislature‟s authority to amend

initiative statutes, judicial decisions have observed that this body is not thereby precluded

from enacting laws addressing the general subject matter of an initiative. The Legislature

remains free to address a “ „related but distinct area‟ ” (County of San Diego v. San Diego

NORML (2008) 165 Cal.App.4th 798, 830 (San Diego NORML); see also Mobilepark

West Homeowners Assn. v. Escondido Mobilepark West (1995) 35 Cal.App.4th 32, 43

(Mobilepark West Homeowners Assn.) [construing the related initiative power of city

voters under Cal. Const., art. II, § 11, and Elec. Code, § 9217]) or a matter that an

initiative measure “does not specifically authorize or prohibit.” (People v. Cooper (2002)

27 Cal.4th 38, 47 (Cooper); see San Diego NORML, supra, 165 Cal.App.4th at p. 830.)

B.

With these considerations in mind, we turn to the case law addressing what

constitutes an “amendment” for purposes of article II, section 10, subdivision (c).

Although some decisions contain broad definitions of the amendment process in this

context,18 for purposes of resolving the issue in the present case we need not endorse any


18

For example, Franchise Tax Bd. v. Cory (1978) 80 Cal.App.3d 772, 776-777

(Cory) states: “An amendment is „ . . . any change of the scope or effect of an existing
statute, whether by addition, omission, or substitution of provisions, which does not
wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or
supplement, or by an act independent and original in form, . . .‟ (Sutherland, Statutory
Construction (4th ed. 1972) § 22.01, p. 105.) A statute which adds to or takes away from
an existing statute is considered an amendment. (Robbins v. O.R.R. Company (1867) 32
Cal. 472.) [¶] In Assets Reconstruction Corp. v. Munson (1947) 81 Cal.App.2d 363, 368,

(footnote continued on next page)

20

such expansive definition.19 It is sufficient to observe that for purposes of article II,

section 10, subdivision (c), an amendment includes a legislative act that changes an

existing initiative statute by taking away from it. (Cooper, supra, 27 Cal.4th 38, 44;


(footnote continued from previous page)

the court described an amendment as „ “a legislative act designed to change some prior or
existing law by adding or taking from it some particular provision.” ‟ And in Balian Ice
Cream Co. v. Arden Farms Co
. (S.D.Cal. 1950) 94 F.Supp. 796, 798-799, the analysis
necessary to determine whether a particular act is or is not an amendment to a prior
statute is described as follows: „Whether an act is amendatory of existing law is
determined not by title alone, or by declarations in the new act that it purports to amend
existing law. On the contrary, it is determined by an examination and comparison of its
provisions with existing law. If its aim is to clarify or correct uncertainties which arose
from the enforcement of the existing law, or to reach situations which were not covered
by the original statute, the act is amendatory, even though in its wording it does not
purport to amend the language of the prior act.‟ ” (Italics omitted.) Although various
aspects of this language quoted from Cory have been repeated with apparent approval by
subsequent decisions (see, e.g., Huening v. Eu (1991) 231 Cal.App.3d 766, 774-775
(Huening)), we observe that none of the cases or authorities cited in the quoted passage
considered or construed the term “amendment” in the context of a constitutional
provision that restricts legislative amendment of an initiative statute.

19

We do, however, question some of the broad language in prior decisions such as

Cory, supra, 80 Cal.App.3d 772, 776-777 (quoted ante, fn. 18), which in some respects
conflicts with the language that we quoted above at the conclusion of part IV.A. For
example, Cory relies upon an extensive quotation from Balian Ice Cream Co. v. Arden
Farms Co
., supra, 94 F.Supp. 796, 798-799, to suggest that a statute is “amendatory”
under article II, section 10, subdivision (c), if the statute‟s “ „aim is to . . . correct
uncertainties which arose from the enforcement of the existing law, or to reach situations
which were not covered by the original statute.‟ ” (Cory, supra, 80 Cal.App.3d at
p. 777.) As applied to the question of what constitutes an amendment under the
constitutional provision, these statements from Balian Ice Cream Co. — a decision that
did not concern or even address this question — appear overbroad and inconsistent with
the observations in Cooper and San Diego NORML that, despite the constitutional
provision, the Legislature remains free to enact laws addressing the general subject
matter of an initiative, or a “related but distinct area” of law that an initiative measure
“does not specifically authorize or prohibit.” (Cooper, supra, 27 Cal.4th 38, 47; see San
Diego NORML
, supra, 165 Cal.App.4th 798, 830.)

21

Knight v. Superior Court (2005) 128 Cal.App.4th 14, 22 (Knight); Proposition 103

Enforcement Project, supra, 64 Cal.App.4th 1473, 1484-1486; Mobilepark West

Homeowners Assn., supra, 35 Cal.App.4th 32, 40 [construing the related initiative power

of city voters under Cal. Const., art. II, § 11, and Elec. Code, § 9217]; Cory, supra, 80

Cal.App.3d 772, 776.)

Applying this definition and related formulations (see ante, fn. 18), courts have

determined that certain statutes constitute impermissible amendments of initiative

measures. (See Proposition 103 Enforcement Project, supra, 64 Cal.App.4th 1473,

1486-1487 [legislative statute that shifted and reduced insurers‟ rate-rollback obligations

impermissibly amended Prop. 103, an initiative statute]; Huening, supra, 231 Cal.App.3d

766, 779 [legislative statute that governed ballot arguments impermissibly amended

Political Reform Act, an initiative measure]; Cory, supra, 80 Cal.App.3d 772, 776-777

[“control language” inserted by Legislature in budget bill, in order to restrict manner of

audits required by Political Reform Act, impermissibly amended that act].)

On other facts, courts have found no amendment, and hence no violation of article

II, section 10, subdivision (c). (See Cooper, supra, 27 Cal.4th 38, 44 [legislative

limitation on presentence conduct credits did not amend 1978 Briggs Initiative]; Knight,

supra, 128 Cal.App.4th 14, 25 [Legislature‟s enactment of domestic partnership statutes

did not conflict with or take away from Prop. 22, an initiative statute providing that

“Only marriage between a man and a woman is valid or recognized in California,” and

hence did not constitute amendment of that statute]; San Diego NORML, supra, 165

Cal.App.4th 798, 831 [Legislature‟s imposition of “identification card” requirements on

counties under the MMP did not improperly amend the CUA, an initiative measure].)

C.

The Court of Appeal‟s analysis began with a review of the voters‟ intent in

enacting the CUA. The court observed: “The CUA does not quantify the marijuana a

patient may possess. Rather, the only „limit‟ on how much marijuana a person falling

22

under the CUA may possess is” that it must be “ „reasonably related to the patient‟s

current medical needs.‟ ” (Quoting Trippet, supra, 56 Cal.App.4th 1532, 1549.) The

appellate court continued: “Ballot materials make clear that this is the only „limitation‟

on how much marijuana a person under the CUA may possess.[20] . . . According to these

ballot statements, the CUA does not place a numeric cap on how much marijuana is

sufficient for a patient‟s personal medical use. [¶] Section 11362.77, however, does just

that. It specifies that a qualified patient may possess eight ounces of dried marijuana [and

may maintain] six mature or 12 immature marijuana plants. (§ 11362.77, subd. (a).) A

qualified patient may possess a greater quantity if the patient has a doctor‟s

recommendation that the quantity in subdivision (a) does not meet the qualified patient‟s

medical needs. (§ 11362.77, subd. (b).)[21] In other words, section 11362.77 . . . has

clarified what is a reasonable amount for a patient‟s personal medical use, namely, eight

ounces of dried marijuana [or a greater quantity if a physician so recommends, plus


20

At this point the Court of Appeal observed: “An argument against the CUA was

[that] it „allows unlimited quantities of marijuana to be grown anywhere . . . in backyards
or near schoolyards without any regulation or restrictions. This is not responsible
medicine. It is marijuana legalization.‟ (Ballot Pamp., Gen. Elec. (Nov. 5, 1996),
argument against Prop. 215, p. 61.) San Francisco District Attorney Terence Hallinan
responded, „Proposition 215 does not allow “unlimited quantities of marijuana to be
grown anywhere.” It only allows marijuana to be grown for a patient‟s personal use.
Police officers can still arrest anyone who grows too much, or tries to sell it.‟ (Id.,
rebuttal to argument against Prop. 215, p. 61.)”

21

As the Court of Appeal was careful to specify, subdivision (b) of section 11362.77

speaks only of the right to “possess” dried marijuana in a quantity consistent with a
patient‟s needs — it does not expressly track subdivision (a) by covering both possession
of dried marijuana and maintenance (cultivation) of plants. Moreover, insofar as the
right to possess marijuana is concerned, subdivision (b) contemplates a standard similar
to the “reasonable amount” standard afforded under the CUA as construed by Trippet,
supra
, 56 Cal.App.4th 1542, 1549. That subdivision, however, imposes a substantial
qualification on that right, not imposed by the CUA, by requiring a physician‟s
recommendation that an eight-ounce allotment does not meet the person‟s medical needs.

23

cultivation of six mature or 12 immature marijuana plants]. [¶] But clarifying the limits

of „reasonableness‟ is amendatory.”

The Court of Appeal further observed: “The Legislature‟s imposition of quantity

limits in section 11362.77 . . . imposes a numeric cap [and the requirement of a

physician‟s recommendation in order to possess more than eight ounces] where the CUA

imposed none. Indeed, the Legislature itself recognized it had overstepped its bounds in

imposing the cap. In 2004, Senator John Vasconcellos, who introduced the MMP,

authored and introduced Senate Bill No. 1494. . . . [That bill] would have amended

section 11362.77 by, among other things, deleting the eight-ounce and plant limits [and

substituting a new subd. (a)] as follows: „A qualified patient, a person with an

identification card, or any designated primary caregiver may possess any amount of

marijuana consistent with the medical needs of that qualified patient or person with an

identification card.‟ (Italics added.)[22] [¶] In introducing Senate Bill No. 1494 . . .


22

At this point, the Court of Appeal in a footnote observed that Senate Bill No. 1494

(2003-2004 Reg. Sess.) would have amended section 11362.77‟s remaining subdivisions
to read as follows: “(b) (1) A person with an identification card or a primary caregiver
with an identification card shall not be subject to arrest for possessing eight ounces or
less of dried marijuana per person with an identification card, and maintaining six or
fewer mature or 12 or fewer immature marijuana plants per person with an identification
card. [¶] (2) Nothing in this section is intended to affect any city or county guidelines to
the extent that the amounts contained in those guidelines exceed the quantities set forth in
paragraph (1). [¶] (c) If a physician determines that the quantities specified in
subdivision (b) do not meet the medical needs of the person with an identification card,
that person or that person‟s primary caregiver with an identification card may possess an
amount of marijuana consistent with those medical needs and shall not be subject to
arrest for possessing that amount. [¶] (d) Only the dried mature processed flowers of
female cannabis plant or the plant conversion shall be considered when determining
allowable quantities of marijuana under this section. [¶] (e) The Attorney General may
recommend modifications to the possession or cultivation limits set forth in this section.
These recommendations, if any, shall be made to the Legislature no later than
December 1, 2005, and may be made only after public comment and consultation with
interested organizations, including, but not limited to, patients, health care professionals,

(footnote continued on next page)

24

Senator Vasconcellos acknowledged the MMP‟s constitutional flaw when he said,

„ “[Senate Bill No. 1494] is a clean-up bill . . . intended to correct a drafting error in my

medical marijuana bill signed into law last year. . . . [The MMP‟s] language may be

problematic because it states that all qualified patients (with or without identification

cards) are subject to guidelines provided in [the] statute. Despite intent language in our

bill stating that the program is intended to be voluntary, many advocates argued that it

amends the initiative by making the guidelines mandatory — therefore making it

unconstitutional. In order to avoid any legal challenges, it is important to make a

distinction between „qualified patient‟ (which applies to all patients) and „persons with

identification cards.‟ ” ‟ (Assem. Com. on Pub. Safety[, Analysis of] Sen. Bill No. 1494

(2003-2004 Reg. Sess.) as amended Mar. 22, 2004, p. 3; see also Sen. Health & Human

Services Com., Analysis of Sen. Bill No. 1494 (2003-2004 Reg. Sess.) as amended

Mar. 22, 2004, p. 3 [the change effected by the MMP „could be viewed as an unlawful

amendment to Proposition 215, an initiative that did not provide a mechanism for

amendments‟].)”

Finally, the Court of Appeal below concluded: “Deleting the quantity limits in the

manner suggested by Senate Bill No. 1494 . . . would have corrected the constitutional

problem created when the Legislature enacted the MMP without voter approval.

Governor Schwarzenegger, however, vetoed the bill, citing a concern that the bill

removed „[r]easonable and established quantity guidelines.‟ (Governor Arnold

Schwarzenegger‟s [veto message concerning] Sen. Bill No. 1494, July 19, 2004.) That

may be a valid concern. Nevertheless, it is a concern that cannot be addressed by the


(footnote continued from previous page)

researchers, law enforcement, and local governments. Any recommended modification
shall be consistent with the intent of this article and shall be based on currently available
scientific research.”

25

Legislature acting without the voters‟ approval. We therefore . . . hold that section

11362.77 unconstitutionally amends the CUA . . . .”

D.

In this court, both parties essentially agree with the foregoing conclusion reached

by the Court of Appeal. The Attorney General, who petitioned for this court‟s review of

the appellate decision, states at the outset of his opening brief: “Respondent does not

contest the Court of Appeal‟s conclusion that section 11362.77 is unconstitutionally

amendatory insofar as it limits an in-court CUA defense.” The Attorney General

subsequently concludes that “application of section 11362.77‟s limits to the in-court

CUA defense exceeds the boundaries of legislative power under article II, section 10,

subdivision (c) . . . by replacing the CUA‟s „reasonableness‟ standard with specified,

numeric guidelines.” Defendant, unsurprisingly, agrees with Attorney General in these

respects.

The interpretation and application of article II, section 10, subdivision (c) adopted

by the Court of Appeal and the parties — namely, that it prohibits an amendment that

arguably merely clarifies an initiative statute by substituting seemingly reasonable,

objective standards and restrictions, in place of a difficult-to-apply “reasonable amount”

test — may at first blush seem to be overly strict. Indeed, as discussed below, a

determination that a statute such as section 11362.77 is unconstitutional in this regard

almost certainly would not be the conclusion reached by a court faced with similar

legislation under the law of any other state. And yet, as explained below, the conclusion

reached by the Court of Appeal and the parties is amply supported by, and indeed

compelled by, not only the prior California cases that have discussed the initiative power

and applied the foregoing constitutional provision, but also by the history of our state‟s

initiative process.

26

1

As noted earlier, article II, section 10, subdivision (c) of the California

Constitution states in relevant part: “The Legislature . . . may amend or repeal an

initiative statute by another statute that becomes effective only when approved by the

electors unless the initiative statute permits amendment or repeal without their approval.”

California‟s bar on legislative amendment of initiative statutes stands in stark contrast to

the analogous constitutional provisions of other states. (Center for Governmental

Studies, Democracy by Initiative: Shaping California‟s Fourth Branch of Government (2d

ed. 2008) p. 114 (hereafter Democracy by Initiative, 2d ed.) [“No other state in the nation

carries the concept of initiatives as „written in stone‟ to such lengths as to forbid their

legislatures from updating or amending initiative legislation”]; see generally Miller,

Constraining Populism: The Real Challenge of Initiative Reform (2001) 41 Santa Clara

L.Rev. 1037, 1046-1047 (hereafter Miller); Manheim & Howard, A Structural Theory of

the Initiative Power in California (1998) 31 Loyola L.A. L.Rev. 1165, 1197-1198.)

Currently, 21 state constitutions allow the electorate to adopt statutes by initiative

measure.23 (Dubois & Feeney, Lawmaking by Initiative: Issues, Options and

Comparisons (1998) pp. 27-28 (hereafter Dubois and Feeny, Lawmaking by Initiative).)

23

In addition to California‟s Constitution (Cal. Const., art. II, §§ 8 & 10), those state

constitutions include: Alaska Constitution, article XI; Arizona Constitution, article 4,
part 1, section 1 (1) and (2); Arkansas Constitution, article 5, section 1; Colorado
Constitution, article V, section 1 (1); Idaho Constitution, article III, section 1; Maine
Constitution, article IV, part 3d, section 18; Massachusetts Constitution, amendment
article XLVIII; Michigan Constitution, article II, section 9; Missouri Constitution, article
III, section 49; Montana Constitution, article III, section 4; Nebraska Constitution, article
III, section 2; Nevada Constitution, article 19, section 2; North Dakota Constitution,
article III, section 1; Ohio Constitution, article II, sections 2.01, 2.01a, and 2.01b;
Oklahoma Constitution, article 5, sections 1 and 2; Oregon Constitution, article IV,
section 1 (2); South Dakota Constitution, article III, section 1; Utah Constitution, article
VI, section 1; Washington Constitution, article II, section 1; Wyoming Constitution,
article 3, section 52.

27

Of those jurisdictions, 12 place no limitation whatsoever24 upon the authority of the

legislature to repeal or amend an initiative statute. In those states, an initiative statute is

treated just like any other statute, and may be repealed or amended at any time. (See

Comment, Power of the Legislature to Amend or Repeal Direct Legislation (1942) 42

Wash. U. L.Q. 439, 440-442 [decisions unanimously have held that, absent language in a

charter explicitly restricting a legislature‟s right to amend or repeal, a state legislature

retains that authority even as to initiative statutes].)

Eight of the remaining nine states that allow voters to adopt statutes by initiative

measure place various limitations upon the authority of the legislature to act in response

to an initiative statute. Two of these jurisdictions allow amendment by the legislature at

any time, but impose a moratorium on legislative repeal until two years after adoption of

the initiative statute.25 Three states place a two- to seven-year moratorium on repeal or

amendment; and yet some of these same jurisdictions allow amendment by a two-thirds

vote during the moratorium period, and by a simple majority thereafter.26 Three other

states allow amendment at any time by a supermajority vote of the legislature, and one of


24

These states are: Colorado, Idaho, Maine, Massachusetts, Missouri, Montana

Nebraska, Ohio, Oklahoma, Oregon, South Dakota, and Utah.

25

See Alaska Constitution, article XI, section 6; Wyoming Constitution, article 3,

section 52 (f).

26

See Nevada Constitution, article 19, section 2, paragraph 3 (moratorium on repeal

and amendment for three years); North Dakota Constitution, article III, section 8
(moratorium on repeal and amendment for seven years, but the legislature may amend by
two-thirds vote during that period); Washington Constitution, article II, section 1 (c)
(moratorium on repeal and amendment for two years, but the legislature may amend by
two-thirds vote during that period).

28

those states — Arizona — additionally requires that the amending legislation “further[s]

the purposes” of the original initiative measure.27

In order to illuminate the scope and effect of California‟s constitutional provision

prohibiting the Legislature from amending an initiative adopted by the people, we

describe below the history of the provision and of the various attempts and proposals to

change it.

2

At the close of the 19th century, a small but vocal contingent of reformers,

pointing to the record of “direct democracy” in Switzerland, campaigned for the adoption

of the initiative and referendum process in the United States.28 A concerted effort to

include similar provisions in the California Constitution began early in the 20th century

and consumed a decade.29 During that time 10 states — led by South Dakota, Utah, and

Oregon — acted prior to California and granted the powers of initiative and referendum

to the electorate.30

27

See Arizona Constitution, article 4, part 1, section 1 (6)(C) (three-quarters vote

required); Arkansas Constitution, article 5, section 1 (two-thirds vote required); Michigan
Constitution, article II, section 9 (three-quarters vote required).

28

See, e.g., Sullivan, Direct Legislation by the Citizenship Through the Initiative and

Referendum (1893) pages 5-14; see generally Goebel, A Government by the People:
Direct Democracy in America, 1890-1940 (2002) pages 31-33, and authorities cited
(hereafter Goebel); Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution
(1989) pages 5-6; Dubois & Feeney, Lawmaking by Initiative, supra, at pages 46-70.

29

See Key and Crouch, The Initiative and Referendum in California (1939) pages

425-426 (recounting the efforts of Dr. John Randolph Haynes) (hereafter Key and
Crouch); Goebel, supra, at pages 85-90 (same).

30

See South Dakota Constitution, article III, section 1 (as amended Nov. 8, 1898);

Utah Constitution, article VI, section 1, paragraph 2 (as amended Nov. 6, 1900); Oregon
Constitution, article IV, section 1 (as amended June 2, 1902); Montana Constitution,
article V, section 1 (as adopted Dec. 7, 1906); Oklahoma Constitution, article V,
section 2 (eff. Nov. 16, 1907); Maine Constitution, article IV, part 1st, section 1 (as
amended by art. XXXI in 1908); Michigan Constitution, article V, section 1 (as amended,

(footnote continued on next page)

29

Although the provisions of some of those state constitutions withheld authority

from the governor to veto initiative statutes passed by the electorate,31 all but one

imposed no restraint whatsoever upon the state legislature‟s power to either repeal or

amend an initiative statute.32 Oklahoma‟s provision, enacted in 1907, most explicitly

preserved legislative power to repeal or amend initiative laws: “The reservation of the

powers of the initiative and referendum in this article shall not deprive the legislature of

the right to repeal any law, [or] propose or pass any measure, which may be consistent

with the constitution of the State and the Constitution of the United States.” (Okla.

Const. of 1907, art. V, § 7, italics added, as reprinted in Kettleborough, supra, at

p. 1098.) The sole exception to this approach in a state charter was reflected in

Michigan‟s provision, effective in early 1909, which specified the most limited authority

for the state legislature to act with respect to a matter that had been adopted by the voters

as an initiative. The Michigan provision, no longer in effect, read: “No act . . . adopted

by the people at the polls under the initiative provisions of this section shall be amended

or repealed, except by a vote of the electors unless otherwise provided in said initiative


(footnote continued from previous page)

eff. Jan. 1, 1909); Missouri Constitution, article IV, section 57 (as amended Nov. 3,
1908); Colorado Constitution, article V, section 1 (as amended Nov. 8, 1910); Arkansas
Constitution, article V, section 1 (as adopted Jan. 12, 1911). (Numeral styles for
provisions of the early state constitutions cited herein are, for the most part, as set forth in
The State Constitutions and the Federal Constitution (Kettleborough, edit., 1918)
(hereafter Kettleborough).)

31

See, for example, the provisions of the Colorado, Michigan, Missouri, Montana,

Oregon, and South Dakota Constitutions, cited ante, footnote 30.

32

Indeed, most state charters specifically provided that the initiative power “shall not

be construed so as to deprive the legislature or any member thereof of the right to propose
any measure” (S.D. Const., art. III, § 1, as amended, 1898) or words to that effect. (See
the provisions of the Arkansas, Colorado, Missouri, Montana, and Oregon constitutions,
cited ante, fn. 30.)

30

measure, but the legislature may propose such amendments, alterations or repeals to the

people.” (Mich. Const. of 1909, art. V, § 1, italics added, as reprinted in Kettleborough,

supra, at p. 689.)33

During the time in which other states were incorporating initiative provisions into

their respective constitutions, the California Legislature permitted charter cities to do the

same as a local matter. San Francisco, in 1898, and Los Angeles, in 1903, each adopted

charters permitting local initiatives, and in doing so included provisions similar to that

subsequently adopted by Michigan in 1909, under which the legislative body, although

barred from amending an initiative measure on its own, at least was authorized to

propose that the electorate adopt a specific amendment to an initiative ordinance. (S.F.

Charter, art. II, § 20, as adopted by the S.F. electorate May 26, 1898; L.A. City Charter,

art. XIX, § 198a, subd. (b), as amended Jan. 1, 1903.)34 The City of Sacramento, by

contrast, took a different and stricter approach when it revised its own charter in 1903 to


33

Effective in 1964, Michigan amended its provision to allow legislative repeal or

amendment of an initiative statute, at any time, by a three-quarters vote. (Mich. Const.,
art. II, § 9, adopted by the electorate Apr. 1, 1963, eff. Jan. 1, 1964.)

34

The San Francisco provision, which apparently was the first in the state to

establish the local initiative, was approved by the Legislature in 1899. (Assem. Conc.
Res. No. 6, Stats. 1899, res. ch. 2, p. 241 et seq.) It specified that an ordinance adopted
by initiative “shall not be repealed by the supervisors. But the supervisors may submit a
proposition for the repeal of such ordinance, or for amendments thereto, for a vote [by the
electorate] at any succeeding election.” (Id., at p. 247, reprinting art. II, § 20 of the S.F.
Charter.) The Los Angeles provision, approved by the Legislature in 1903 (Sen. Conc.
Res. No. 4, Stats. 1903, res. ch. 4, p. 555 et seq.), read: “[A]ny ordinance proposed by
petition, or which shall be adopted by a vote of the people can not be repealed or
amended, except by a vote of the people. [¶] . . . [¶] The council may submit a
proposition for the repeal of any such ordinance, or for amendments thereto, to be voted
upon at any succeeding general city election . . . .” (Id., at p. 573, reprinting § 198a,
subd. (b) of the L.A. charter; see generally Sitton, John Randolph Haynes: California
Progressive (1992) pp. 36-44 [describing history of the L.A. provision and early lobbying
for a statewide initiative provision].)

31

permit the enactment of ordinances by initiative. Its charter provided, simply and starkly:

“[A]ny ordinance proposed by petition . . . which shall be adopted by a vote of the

people, cannot be repealed or amended, except by a vote of the people.” (Sac. City

Charter, art. XII, § 231, as amended Nov. 3, 1903, italics added.)35

At each session of the California Legislature convened between 1903 and 1909,

proposals were advanced to put before the electorate constitutional amendments designed

to extend the initiative and referendum statewide. Although most of these bills departed

from the prevailing approach of the other states (and followed the strict approach of the

Sacramento charter) by expressly barring any amendment by the Legislature of initiative

statutes,36 legislation proposed in 1907 temporarily changed course and sought to adopt


35

The Sacramento provision, apparently the third in the state to establish the local

initiative, was approved by the Legislature in early February 1905. (Sen. Conc. Res.
No. 5, Stats. 1905, res. ch. 12, p. 924 et seq.) In the years between 1905 and 1910, 16
additional California “home rule cities” adopted initiative procedures. (See Key &
Crouch, supra, at p. 428, fn. 14 [listing the cities].)


Presently, Elections Code section 9125, governing county initiatives, and section

9217, governing city initiatives, perpetuate the “Sacramento version” of the strict rule,
permitting no amendment of a local initiative measure “unless provision is otherwise
made in the original ordinance.” Current local charters also follow that approach. (See
Sac. City Charter, § 160 [making the provisions of the Elec. Code applicable to local
initiatives]; S.F. Charter, § 14.101 [“No initiative . . . approved by the voters shall be
subject to veto, or to amendment or repeal except by the voters, unless such initiative . . .
shall otherwise provide”]; but see L.A. City Charter, § 464, subd. (a) [“Any ordinance
adopted by a vote of the electors of the City pursuant to an initiative petition cannot be
amended or repealed, except by an ordinance proposed either by petition or by the
Council at its own instance and adopted by a vote of the electors, or by an amendment of
the Charter superseding the ordinance”].)

36

In 1903: Assembly Constitutional Amendment No. 15 (introduced Jan. 20, 1903,

by Mr. Camp, p. 3 [“No measure adopted or approved by vote of the electorate shall be
subject to veto, or be amended or repealed except by vote of the electorate”]); Senate
Constitutional Amendment No. 9 (introduced Jan. 19, 1903, by Sen. Hubbell, p. 3
[same]). In 1905: Assembly Constitutional Amendment No. 6 (introduced Jan. 16, 1905,
by Mr. Prescott, p. 2 [same]); Senate Constitutional Amendment No. 5 (introduced Jan.
10, 1905, by Sen. Pendleton, p. 2 [same]). In 1907: Senate Constitutional Amendment

(footnote continued on next page)

32

the majority view in the United States, allowing legislative amendment of statutes

adopted by initiative.37 No matter how framed, however, each effort to create a statewide

initiative power met the same fate: it failed to secure the necessary support of two-thirds

of each house of the Legislature, and hence no such proposal was submitted to the

electorate.

Thereafter, in drafting the ultimately successful California measure of 1911, the

proponents did not follow the majority model, under which the state legislature was left

free to repeal or amend initiative statutes just like any other statute. Nor did the drafters

of the California provision follow even the minority model of San Francisco, Los

Angeles, and Michigan, under which the legislative body could not directly repeal or

amend, but at least could propose to the voters that an initiative measure be repealed or


(footnote continued from previous page)

No. 6 (introduced Jan. 14, 1907, by Sen. Anthony, p. 2 [same]).


In 1909: Senate Constitutional Amendment No. 6 (introduced Jan. 8, 1909, by

Sen. Black, p. 3 [proposing that “[a] statute adopted by direct vote of the people can be
repealed or amended only by direct vote of the people”]); Senate Constitutional
Amendment No. 9 (introduced Jan. 8, 1909, by Sen. Anthony, p. 2 [proposing that “[n]o
measure adopted or approved by vote of the electorate shall be subject to veto, or be
amended or repealed [except] by vote of the electorate”]); Assembly Constitutional
Amendment No. 11 (introduced Jan. 11, 1909, by Mr. Drew, p. 3 [same as Sen. Const.
Amend. No. 6, introduced by Sen. Black]); see generally Hichborn, The Story of the
Session of the California Legislature of 1909 (1909) pages 192-201 (colorfully describing
the drafting and defeat of the 1909 proposals).

37

See Assembly Constitutional Amendment No. 17, introduced January 31, 1907, by

Mr. Davis, pages 1-2 (containing no provision limiting veto by Governor, or limiting
legislative amendment of initiative measures); Senate Constitutional Amendment No. 25,
introduced January 21, 1907, by Senator Caminetti, page 2 (same; and also providing —
as in a number of other state constitutions (ante, fn. 32): “This section shall not be
construed to deprive any member of the legislature of the right to introduce any
measure”).

33

amended.38 Instead, California‟s legislative drafters proposed, and the California voters

ultimately adopted, a measure that — more strictly than any other state (then or now), but

like the then-extant Sacramento charter — withheld all independent authority from the

Legislature to take any action on measures enacted by initiative, unless the initiative

measure itself specifically authorized such action. In Senate Constitutional Amendment

No. 22, the voters endorsed, as Proposition 7 on the 1911 ballot, the predecessor to our

present article II, section 10, subdivision (c), as follows: “Any act, law or amendment to

the constitution submitted to the people by either initiative or referendum petition and

approved by a majority of the votes cast thereon, at any election, shall take effect five

days after the date of the official declaration of the vote by the secretary of state. No act,

law or amendment to the constitution, initiated or adopted by the people, shall be subject

to the veto power of the governor, and no act, law or amendment to the constitution,

adopted by the people at the polls under the initiative provisions of this section, shall be

amended or repealed except by a vote of the electors, unless otherwise provided in said

initiative measure; but acts and laws adopted by the people under the referendum

provisions of this section may be amended by the legislature at any subsequent session


38

The drafters of the statewide initiative also departed from the approach that had

been employed by the Legislature with respect to the use of the initiative and referendum
at the county level. On April 3, 1911, the Legislature had approved former Political Code
section 4058, providing for initiative and referendum ordinances by counties, and in
doing so it had embraced the San Francisco, Los Angeles, and Michigan model,
providing that “[t]he board of supervisors may submit to the people, without a petition
therefor, a proposition for the repeal of any adopted ordinance or for amendments thereto
. . . to be voted upon at any succeeding general or special election and if such proposition
so submitted receive a majority of the votes cast thereon at such election, such ordinance
shall be repealed or amended accordingly.” (Stats. 1911, ch. 342, § 1, p. 579; see also
Stats. 1912, 1911 Ex. Sess. ch. 31, § 1, p. 127.) As observed ante, footnote 35, the
Legislature subsequently reverted to the strict “Sacramento version” of the rule,
permitting no amendment of a local (city or county) initiative unless that initiative itself
so allows.

34

thereof.” (Cal. Const., former art. IV, § 1, added by Prop. 7, Special Elec. (Oct. 10,

1911), italics added.)

At the next legislative session, two proposed constitutional amendments were

introduced, each of which endeavored to change the new initiative provision by, among

other things, giving the Legislature authority to amend initiative statutes upon a

supermajority vote of each house.39 Neither effort secured the necessary legislative

support of two-thirds of each house, and hence neither proposal was submitted to the

voters.

Similar unsuccessful efforts to amend the initiative process were undertaken in

subsequent years. In 1919, Assembly Constitutional Amendment No. 16 was introduced

in the Legislature, proposing a constitutional amendment that, if approved by the voters,

would have eliminated the initiative power and permitted the Legislature to repeal or

amend previously enacted initiative statutes.40 Related, but less drastic, legislative

proposals for constitutional amendments were made in the early- to mid-1920‟s. One

proposal sought to allow legislative repeal or amendment after a moratorium of four

years following adoption of an initiative statute.41 Another proposal, consistent with the

39

See Senate Constitutional Amendment No. 56, introduced February 3, 1913, by

Senator Gates, pages 2-3, 7 (proposing to increase the number of signatures required for
initiative statutes and constitutional amendments, and proposing to adopt a new subd. (j)
to former art. IV, § 1, providing that any initiative law “may be repealed or amended by
the legislature by three fourths of the members elected to each house”); Assembly
Constitutional Amendment No. 59, introduced February 3, 1913, by Mr. Clark (same).

40

Assembly Constitutional Amendment No. 16, introduced January 21, 1919, by Mr.

Wickham, would have eliminated any specific authorization for the people to employ the
initiative power, while retaining the power of referendum. The proposed provision also
stated: “Nothing herein shall be construed so as to prevent the legislature from repealing
or amending, any act, or measure heretofore enacted into law by what is known as the
initiative.” (Id., at p. 2.)

41

See Assembly Constitutional Amendment No. 11, introduced January 19, 1923, by

Mr. Dozier (proposing to adopt a new § “1b” of former art. IV).

35

National Municipal League‟s 1924 model state constitution,42 proposed to specify that

initiative laws be “subject to amendment by the legislature” so long as the amendment

did not “destroy the intent and purpose of the act or . . . cripple or prevent the carrying

out of the provisions thereof.”43

In the meantime, statutes enacted by the electorate as initiatives posed problems

that demanded attention and amendment. And yet, such statutes were so difficult to

amend that they were aptly characterized by contemporaneous commentators as being,

“in effect,” “quasi-constitutional amendments.” (Key & Crouch, supra, at p. 481.) For

example, although it became clear that an amendment would benefit the Chiropractic

Initiative Act, adopted in 1922, the Legislature apparently believed that it lacked clear

authority even to submit to the voters any proposed measure to amend that initiative

statute.44 Accordingly, no proposal to change the 1922 chiropractic act emanated from

the Legislature. Instead, signatures laboriously were gathered to place onto the ballot

proposed amendments in the form of follow-up voter initiative measures. Such ballot


42

Section 40 of the model constitution provided: “The initiative and referendum

provisions of this constitution shall be self-executing . . . . Laws may be enacted to
facilitate their operation, but no law shall be enacted to hamper, restrict or impair the
exercise of the powers herein reserved to the people.” (Nat. Municipal League, A Model
State Constitution (rev. ed. 1924) § 40, p. 9.)

43

See Assembly Constitutional Amendment No. 22, introduced January 23, 1925, by

Mr. Cleveland, page 3 (proposing to amend former art. IV, § 1 to read: “[A]ll initiative
laws which are now enforced or may hereafter be adopted by the people are subject to
amendment by the legislature; provided, that the legislature shall not have the power to
destroy the intent and purpose of the act or to cripple or prevent the carrying out of the
provisions thereof”).

44

See Ballot Pamphlet, General Election (Nov. 5, 1946) argument in favor of

Proposition 12, part I, page 12 (“It is uncertain under the wording of [former art. IV, § 1]
whether a proposal to amend an initiative measure may be submitted by the Legislature to
the people for their consideration”).

36

measures concerning the 1922 chiropractic act were submitted to the voters, and rejected

by them, in 1934 and 1939.45

This and a similar experience with the equally problematic “Torrens Land Title

Act” or Land Title Law, adopted by the voters as an initiative statute in 1914,46

eventually triggered the first of only three substantive changes that have been made to the

Constitution‟s initiative provision since its adoption in 1911. (See post, fn. 55.) There

apparently was no entity willing and able to mount an initiative campaign to amend the

Torrens Act initiative statute, and as observed earlier, the Legislature evidently believed

that the strict language of the constitutional provision (former art. IV, § 1) might be

construed to forbid the Legislature even from proposing such an amendment to the

voters. In response, in 1945 the Legislature adopted, and then proposed to the voters,

Senate Constitutional Amendment No. 22 (Stats. 1945, ch. 147, pp. 3163-3164). That

provision was designed to amend article IV, section 1, by adding section 1b, to permit

“the Legislature to amend or repeal any act adopted by vote of the people under the


45

Proposition 9, in 1934, proposed to amend the 1922 chiropractic initiative statute

to, among other things, create a state chiropractors association; define chiropractic and
physical therapy, and regulate these practices; regulate chiropractic schools; and provide
for chiropractic licenses and fees. (Ballot Pamp., Gen. Elec. (Nov. 6, 1934) text of Prop.
9, pt. II, pp. 13-24.) The ballot argument in favor of the measure explained that only
“[t]he people . . . can vote a change in [the 1922 initiative statute].” (Id., pt. I, p. 14.)
Likewise, Proposition 2, in 1939, proposed somewhat similar amendments. The
argument in favor of Proposition 2 observed: “[T]he changes asked for in this
amendment . . . can only be done by the people voting „YES‟ on this amendment.”
(Ballot Pamp., Special Elec. (Nov. 7, 1939) pt. I, p. 6.)

46

That measure as enacted (hereafter Torrens Act initiative statute) was described as

“An act to amend an act entitled „An act for the certification of land titles and the
simplification of the transfer of real estate.‟ ” (Ballot Pamp., Gen. Elec. (Nov. 3, 1914)
text of Land Title Law, p. 59.) In many respects the Torrens Act initiative statute proved
unworkable. (See, e.g., 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property,
§ 369, p. 434.)

37

initiative, to become effective only when submitted to and approved by the electors.

(Stats. 1945, ch. 147, p. 3164, italics added.)47 The ballot argument in favor of Senate

Constitutional Amendment No. 22, submitted to the voters as Proposition 12, explained

that “adoption . . . will do away with our present cumbersome methods and will provide

an orderly and responsible way in which amendments to initiative laws may be proposed,

and at the same time preserve to the people their primary right to approve or reject all

such measures.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1946) argument in favor of Prop. 12,

pt. I, p. 12, italics added.) The voters adopted Proposition 12 at the 1946 General

Election.

In 1948, 1950, and 1952 the Legislature employed its new authority to pass and

then propose for voter approval a series of amendments to the 1922 chiropractic initiative

statute.48 Thereafter, to address the problems related to the 1914 Torrens Act initiative

statute, the Legislature in 1954 used its new authority to propose an amendment to that

law, giving the Legislature broad power to amend or repeal that particular act. (Stats.

1955, 1st Ex. Sess. 1954, ch. 58, § 1, pp. 331-332.) The voters ratified the Legislature‟s


47

The provision read in full: “Sec. 1b. Laws may be enacted by the Legislature to

amend or repeal any act adopted by vote of the people under the initiative, to become
effective only when submitted to and approved by the electors unless the initiative act
affected permits the amendment or the repeal without such approval. The Legislature
shall by law prescribe the method and manner of submitting such a proposal to the
electors.” (Stats. 1945, ch. 147, p. 3164.) In other words, this provision was designed to
give to the California Legislature the same authority earlier granted to local legislative
bodies under the charters of San Francisco and Los Angeles — and granted to the
Michigan legislature by the then-extant Michigan Constitution, former article V,
section 1 — authority which, by virtue of its omission from California Constitution,
former article IV, section 1, the Legislature assumed it did not possess.

48

The voters enacted both Proposition 16 (Gen. Elec., Nov. 2, 1948) and Proposition

7 (Gen. Elec., Nov. 7, 1950), but rejected Proposition 17 (Gen. Elec., Nov. 4, 1952).

38

proposal at the 1954 General Election,49 thereby removing the need for any future

approval by the electorate for amendments to the Torrens law, and subsequently the

Legislature repealed that law. (Stats. 1955, ch. 332, § 1, pp. 789-790.) No such broad

authorization had been sought by or given to the Legislature with respect to the 1922

chiropractic initiative statute, however, and as a result, on seven occasions since 1960,

the Legislature has been forced to ask the electorate to approve additional amendments to

this 1922 initiative statute.50

Although the 1946 amendment to former article IV, section 1, gave the Legislature

a method by which it might propose a specific amendment to, or repeal of, an initiative-

enacted law, that change also carefully preserved article IV‟s original strict safeguards by

requiring the electorate’s approval of any legislative proposal to amend or repeal (unless

the initiative measure itself allowed amendment or repeal without voter approval). Even

this slight modification in the relationship between statutes adopted by initiative and

those adopted by the Legislature, however, still left voter-adopted initiative statutes in

California far more insulated from adjustment than in any other jurisdiction.51

In the mid-1960‟s, California, assisted by the California Constitution Revision

Commission, undertook a revision of the Constitution. (See generally Californians for an


49

See Ballot Pamphlet, General Election (Nov. 2, 1954) text of Proposition 7, part II,

page 7 (amending the 1914 Land Title Law (Torrens Act) to add § 116, providing: “The
Legislature may amend or repeal all or any part of this act at any time”).

50

Each time, the voters have approved the proposed amendments. (Prop. 7, Gen.

Elec. (Nov. 8, 1960); Prop. 11, Gen. Elec. (Nov. 3, 1970); Prop. 8, Primary Elec. (June 6,
1972); Prop. 15, Gen. Elec. (Nov. 2, 1976); Prop. 4, Gen. Elec. (Nov. 7, 1978); Prop. 113,
Primary Elec. (June 5, 1990); and Prop. 44, Primary Elec. (Mar. 5, 2002).)

51

As observed ante, footnote 33, by 1964 Michigan — which since 1909 had

employed a similarly strict rule, and yet at the same time allowed the state legislature to
at least propose to the electorate that an initiative statute be amended — had amended its
own constitutional provision to allow legislative repeal or amendment of an initiative
statute at any time, by a supermajority vote.

39

Open Primary v. McPherson (2006) 38 Cal.4th 735, 752-754.) Although some

commentators questioned the then-existing provision of article IV that strictly limited the

legislative amendment of statutes adopted by initiative,52 no specific proposal was made

to change that rule.53 After conducting its own extensive review, the commission

recommended no change in that respect. (See Cal. Const. Revision Com., Proposed

Revision (1966) p. 47 [proposing revised art. IV, § 24, subd. (c)] (Proposed Revision).)54

Nor did the Legislature‟s joint committee question that determination. (See Assem.

Interim Com. on Const. Amends., Final Reps. (Jan. 2, 1967) 2 Appen. to Assem. J. (1967

Reg. Sess.).) The resulting Assembly Constitutional Amendment No. 13 proposed

52

(See, e.g., Ops. Cal. Legis. Counsel, No. 7243 (Nov. 1964) Comparison of Draft

of Proposed Revision of Article IV and Existing Article IV of the California Constitution,
p. 7, [draft no. 5]; Special Counsel John A. Busterud, Joint Com. On Legis. Organization,
letter to Cal. Const. Revision Com., Apr. 7, 1964, p. 2 [recommending consideration of a
change permitting “amendment or repeal of initiatives by an extraordinary vote”]; Assem.
Interim Com. on Const. Amends., Meeting on the Initiative and Effective Dates of
Statutes (Dec. 13-14, 1965) pp. 95-96 [committee chair Edward E. Elliott commenting
that idea of giving Legislature some power to amend initiative statutes “does appear to
have some merit”]; Assem. Interim Com. on Const. Amends., Background Study on the
Initiative (Nov. 1965) p. 13 [mentioning proposal to follow approach of Nat. Municipal
League‟s 1963 model constitution and “[a]llow the Legislature the right to . . . amend an
adopted initiative measure”]; see Nat. Municipal League, Model State Constitution (6th
ed. 1963) p. 118, appen.)

53

Nor did the Legislature itself endorse any such proposal for change. Assembly

Constitutional Amendment No. 3, introduced January 4, 1965, by Assemblyman Winton,
would have confined the electorate‟s initiative power to statutes only — and not
constitutional amendments (id., pp. 1-2) — and would have permitted legislative
amendment of an initiative-enacted statute by a two-thirds vote of each house. (Id., at
p. 3.) The proposal failed to secure the required two-thirds vote of each house, however,
and hence no such measure was submitted to the voters.

54

The commission characterized its proposed provision as “restat[ing] without

change in meaning the existing provisions relating to amendment and repeal of initiative
and referendum statutes. While the Legislature can amend or repeal a referendum statute,
it cannot do so with an initiative statute without approval by the electors.” (Proposed
Revision, supra, p. 47.)

40

numerous revisions of article IV and various other articles, but no change concerning the

strict limitation on legislative amendment of initiative statutes.55 (See Stats. 1966, 1st Ex.

Sess., ch. 139, pp. 960-961, 971-972.)

In the 1966 General Election, the voters adopted Assembly Constitutional

Amendment No. 13 as Proposition 1-a, which relocated the initiative provisions to article

IV, section 22 et seq. Revised article IV, section 24, subdivision (c) rephrased the former

provision concerning repeal and amendment, without substantive change, to read as it

does today: “The Legislature may . . . amend or repeal an initiative statute by another

statute that becomes effective only when approved by the electors unless the initiative

statute permits amendment or repeal without their approval.” Thereafter, following two

more failed attempts to change the provision to allow amendment by the Legislature,

without voter approval, of statutes adopted by initiative,56 the provision was renumbered

in 1976, and remains today, as article II, section 10, subdivision (c).


55

With regard to the Constitution‟s initiative provisions, the California Constitution

Revision Commission recommended two substantive changes to former article IV that
the Legislature endorsed in Assembly Constitutional Amendment No. 13 (as enrolled
July 18, 1966). The first change lowered the number of signatures necessary to place a
statutory initiative on the ballot, from eight percent of all votes cast for candidates for
governor at the preceding gubernatorial election, to five percent of all such votes cast.
(Proposed Revision, supra, pp. 43-44.) The second change removed the optional
“indirect initiative” (that is, a petition to the Legislature, which then had the option to
adopt the measure or to submit it, along with a competing measure, to the electorate).
The purpose of the first change was to encourage sponsors of initiative measures to put
forth a statutory initiative rather than a constitutional amendment. (Id., at p. 44.) The
optional “indirect initiative” was removed in light of the signature percentage change,
and because “[it] merely adds an additional step to accomplish the same result that can be
accomplished under the initiative generally” and “has been used only four times, and only
once successfully.” (Id., at p. 52.)

56

Assembly Constitutional Amendment No. 15, introduced January 24, 1973, would

have required a two-thirds vote of the electorate for initiative constitutional amendments,
and would have permitted legislative amendment of an initiative-enacted statute by a
two-thirds vote of each house. (Id., at p. 2.) Assembly Constitutional Amendment No.

(footnote continued on next page)

41

In the ensuing decades, numerous commissions and reports have recommended

that California‟s initiative provision be altered to permit legislative amendment of

initiative statutes without voter approval,57 and on occasion bills have been submitted to


(footnote continued from previous page)

66, introduced June 6, 1975, would have permitted the Legislature, after “a reasonable
time,” to amend or repeal any initiative statute by a majority vote, and would have
permitted the Legislature to amend or repeal any initiative constitutional amendment by a
two-thirds vote, “subject to the approval of the voters in the next ensuing general
election.” (Id., at pp. 5-6 [proposed art. IV, § 22, subd. (h)].)

57

See California Commission on Campaign Financing, Democracy by Initiative:

Shaping California‟s Fourth Branch of Government (1st ed. 1992) page 118 (the
Legislature should “be allowed to amend any initiative after its enactment, so long as the
legislation amending an initiative „furthers the purposes and intent of the law,‟ is in final
form for at least 12 days and is approved by a 60% vote of both houses” [or a lesser
percentage if the initiative so specifies]); Dubois and Feeney, Improving the California
Initiative Process: Options for Change (1992) page 70 (“As the circumstances upon
which [initiative] statutes are based change, the legislature should have the power to
make changes. . . . [G]iving the legislature this kind of authority would reduce the
number of ballot measures by eliminating the need to have trivial changes in old
initiatives approved by the people”); Citizens Commission on Ballot Initiatives, Report
and Recommendations on the Statewide Initiative Process (Jan. 1994) page 4 (“After
three years of its enactment, the Legislature should be able to amend any statutory
initiative (not constitutional amendments) by a two-thirds vote (or less if the initiative
itself so specifies),” and any such amendment “must be consistent with the purposes and
intent of the initiative”); California Constitution Revision Commission, Final Report and
Recommendations to the Governor and the Legislature (1996) page 32 (“The
Commission recommends that the constitution allow the legislature, with gubernatorial
approval, to amend statutory initiatives after they have been in effect for six years” in
order to “allow the state to change laws and programs in response to changing
circumstances” and “correct any unintended consequences caused by an initiative”);
Dubois and Feeney, Lawmaking by Initiative, supra, at page 224 (“We recommend that
all statutes be treated alike and that initiative statutes be subject to amendment and repeal
by the legislature”); Democracy by Initiative, 2d ed., supra, at page 137 (“The legislature
should be allowed to amend any statutory initiative after its enactment, so long as the
legislation amending an initiative „furthers the purposes and intent of the law,‟ is in final
form for at least ten days, and is approved by a two-thirds vote of both houses” — or a
lesser percentage if the initiative so specifies); see also Miller, supra, 41 Santa Clara

(footnote continued on next page)

42

so amend the Constitution.58 But again, no such proposal has secured the necessary two-

thirds vote of each house of the Legislature, and hence no such proposal has been

submitted to the electorate.

3

With this background in mind, we return to the Court of Appeal‟s threshold

determination that section 11362.77 of the MMP, insofar as it places a specific limitation

upon the amount of medical marijuana that a person protected by the CUA may possess

and cultivate, constitutes an amendment of the CUA in violation of California

Constitution, article II, section 10, subdivision (c). As observed earlier, this

constitutional provision specifies that the Legislature may amend an initiative measure


(footnote continued from previous page)

L.Rev. 1037, 1067-1068 (recommending that the Legislature be afforded power to amend
initiative statutes, but recognizing that such a rule would give initiative proponents
“greater incentives to pursue constitutional initiatives rather than statutory initiatives for
ordinary policies,” and hence recommending reforms to make constitutional initiatives
more difficult); but see Speaker‟s Commission on the California Initiative Process, Final
Report (Jan. 2002) page 23 (listing, as a matter “considered but not adopted,” a proposal
to “[a]llow the Legislature and the Governor to amend a statutory initiative after a period
of time without a confirming vote of the voters”); League of Women Voters of
California, Action Policies and Positions (2008) page 2 (continuing to recommend — as
originally adopted in 1984 and updated in 1999 — that “[a]pproval by the voters should
be required for any changes made by the legislature in a statute adopted by initiative,
unless the statute permits amendment without the approval of voters”).

58

Senate Constitutional Amendment No. 44, introduced January 5, 1984, would

have allowed the Legislature to amend or repeal an initiative statute (1) by a two-thirds
vote, if the initiative statute had been adopted within the prior six years; or (2) by a
majority vote, if the amendment or repeal was enacted more than six years following
adoption of the initiative statute. (Id., at p. 3.) Assembly Constitutional Amendment No.
49, introduced May 13, 1996, was an omnibus measure that, among other things, would
have permitted the Legislature to amend or repeal an initiative statute by a two-thirds
vote, but only after a moratorium of six years following enactment of the initiative
statute. (Id., at p. 20.) Senate Constitutional Amendment No. 39, as amended June 6,
1996, page 20, tracked, in relevant part, Assembly Constitutional Amendment No. 49.

43

solely “by another statute that becomes effective only when approved by the electors” —

unless “the initiative statute permits” such amendment explicitly.

In the present case, the CUA — unlike many other initiative measures in recent

decades — did not grant the Legislature authority to amend.59 Nor did the Legislature


59

See generally Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251 (“It

is common for an initiative measure to include a provision authorizing the Legislature to
amend the initiative without voter approval only if the amendment furthers the purpose of
the initiative.”). As observed in Miller, supra, Santa Clara L.Rev. 1037, 1067, footnote
92: “In recent years, a majority of initiatives that have qualified for the ballot have
authorized amendments, but usually only by a supermajority, and only to further the
purposes of the initiative.” As further explained in Democracy by Initiative, 2d ed.,
supra, at pages 114-115: “Since 1974, a growing percentage of statutory initiatives have
. . . voluntarily permitted the legislature to amend their provisions, although none has
allowed the legislature to repeal the measure. Of the 107 statutory measures between
1976 and 2006 that qualified for the ballot, 78 (73%) had language authorizing
amendments. Between 2000 and 2006, 15 of the 18 statutory initiatives on the ballot
(83%) allowed legislative amendments. [¶] Proponents are increasingly allowing the
legislature to amend their initiatives for a number of reasons. First, they are becoming
more sophisticated in drafting their measures and are hiring experienced lawyers for this
purpose. These lawyers know that no complex law can be drafted perfectly, and few
laws can be left in place for years without needing fine-tuning or additions. [¶] Second,
initiatives are becoming more complex as they seek to adopt detailed solutions to
perceived problems. Initiatives are not general policy statements asking the legislature to
solve a problem. They contain specific, legal language that must be kept flexible for
continued viability. [¶] Finally, the legislature, despite a few exceptions, has generally
been respectful of initiatives and has not sought to amend them without at least the tacit
approval of the proponents. The legislature has amended the Political Reform Act over
200 times. In virtually every instance, the Fair Political Practices Commission, the
watchdog agency created by the act and charged with its administration, has not
objected.” (Fn. omitted.) Similarly, it has been suggested that although California‟s
strict rule may have been motivated by fear that the Legislature “would hastily tear down
what the people have enacted through the initiative process, the general experience in the
United States is that legislatures are reluctant to change laws that have been adopted
through the initiative process,” and hence there remains “no valid reason . . . for
significantly limiting the legislature‟s ability to amend and repeal initiative statutes.”
(Dubois & Feeney, Lawmaking by Initiative, supra, at p. 224.)

44

merely propose the MMP and submit it to the electorate for approval. Instead, the

Legislature adopted that scheme on its own, without seeking ratification by the electorate.

In view of the case law recited in part IV.A. and B. — which is, in turn, consistent

with the history of article II, section 10, subdivision (c) recited in part IV.D.2 — we

conclude that section 11362.77, by imposing quantity limitations upon “qualified patients”

and “primary caregivers,” amends the CUA. Under the CUA as adopted by Proposition

215, these individuals are not subject to any specific limits and do not require a

physician‟s recommendation in order to exceed any such limits; instead they may possess

an amount of medical marijuana reasonably necessary for their, or their charges‟, personal

medical needs. By extending the reach of section 11362.77‟s quantity limitations beyond

those persons who voluntarily register under the MMP and obtain an identification card

that provides protection against arrest — and by additionally restricting the rights of all

“qualified patients” and “primary caregivers” who fall under the CUA — the challenged

language of section 11362.77 effectuates a change in the CUA that takes away from rights

granted by the initiative statute. (Cooper, supra, 27 Cal.4th 38, 45 [finding no

amendment]; Knight, supra, 128 Cal.App.4th 14, 25 [same]; Proposition 103 Enforcement

Project, supra, 64 Cal.App.4th 1473, 1484-1486 [finding an impermissible amendment].)

In this sense, section 11362.77‟s quantity limitations conflict with — and thereby

substantially restrict — the CUA‟s guarantee that a qualified patient may possess and

cultivate any amount of marijuana reasonably necessary for his or her current medical

condition. In that respect, section 11362.77 improperly amends the CUA in violation of

the California Constitution.60


60

The case before us is unusual, in that both parties agree with the conclusion that the

statutory enactment constitutes an unconstitutional amendment. We observe that,
although not mentioned in the briefs, the opposite conclusion was reached by the
Legislative Counsel of California, in an opinion letter dated January 8, 2004. (See Cal.
Legis. Counsel, letter to Sen. Vasconcellos, Jan. 8, 2004, titled “Medical Marijuana:

(footnote continued on next page)

45


(footnote continued from previous page)

Proposition 215.”) The Legislative Counsel reasoned that the challenged portions of the
MMP did not amend the CUA, because, in light of section 11362.77, subdivision (b), the
ultimate limit that Section 11352.77 places on the amount of marijuana that a qualified
patient or primary caregiver may possess or cultivate is substantially the same as the limit
provided under [the CUA], as construed by the court in [Trippet, supra, 56 Cal.App.4th
1532] at page 1549, which is the amount reasonably related to the patient‟s current
medical needs.” (Letter at pp. 9-10, italics added.) In other words, the Legislative
Counsel reasoned, because section 11362.77, subdivision (b), provides that a qualified
patient may possess an amount of marijuana “consistent with the patient‟s needs” so long
as the patient “has a doctor‟s recommendation that [the eight-ounce limitation set forth in
subd. (a)] does not meet the qualified patient‟s medical needs,” the “ultimate” limits set by
the MMP are “essentially the same” as those set by the CUA. (Letter, at p. 10, italics
added.)


The problem with the Legislative Counsel‟s theory — and perhaps the reason that

the Attorney General does not advance it in this court — is that subdivision (b) of section
11362.77 of the MMP does not truly “substantially” or “essentially” replicate the
“reasonable amount” test of the CUA, as construed in Trippet, supra, 56 Cal.App.4th at
page 1549. Instead, as alluded to ante, footnote 21, in two ways, the rights conferred by
subdivision (b) of section 11362.77 fall significantly short of matching the rights
established by the CUA.


First, on its face, subdivision (b) speaks only of the right to “possess” dried

marijuana consistent with a patient‟s needs — it does not expressly track subdivision (a)
by covering both possession of dried marijuana and maintenance (cultivation) of plants.
Presumably, this limitation was intentional. The Legislature may have concluded that
physicians would be able to estimate the amount of dried marijuana that a patient would
need to possess for personal medical use, but would not be qualified to estimate the
number of plants that a patient additionally would need to cultivate in order to maintain a
regular supply for such use. In any event, in this respect, subdivision (b) of section
11362.77 addresses only part of what is covered by the CUA. Accordingly, even if a
physician recommends under subdivision (a) of section 11362.77 that eight ounces is
insufficient for a patient‟s needs, subdivision (b) of that section provides no similar
“override” for the cultivation limitation (“six mature and 12 immature plants”), and hence,
in this respect at least, the MMP clearly “takes away” from a right created by the CUA.


Second, insofar as the right to possess marijuana is concerned, subdivision (b) of

the MMP enactment does contemplate a standard similar to the “reasonable amount”
standard afforded under the CUA as construed by Trippet, supra, 56 Cal.App.4th at page
1549. Unlike the CUA, however, this subdivision imposes a burden on that right, by
requiring a physician‟s recommendation that an eight-ounce allotment does not meet the
person‟s medical needs. As suggested ante, footnote 10, this burden is substantial,

(footnote continued on next page)

46

As the Governor suggested when he vetoed the 2004 legislation that had been

designed to amend section 11362.77 of the MMP in order to avoid the constitutional

problem identified above, it may well be prudent and advisable for the Legislature to be

able to change the CUA so as to set forth specific guidance as to quantity limitations, for

the mutual benefit of law enforcement officials as well as authorized users of medical

marijuana. (See Governor‟s veto message concerning Sen. Bill No. 1494 (2003-2004

Reg. Sess.) Sen. Daily J. (July 20, 2004) pp. 4676-4677.) In a similar vein, as observed

ante, footnote 57, commissions and commentators have urged that the California

Legislature should have the same authority possessed by the legislatures of all other

states to directly amend an initiative statute in order to correct errors, clarify application,


(footnote continued from previous page)

because physicians are counseled by the California Medical Association that in light of
federal case law, physicians should avoid offering advice concerning matters such as
“how much medicinal cannabis the patient should take.” (See CMA On-Call, supra, at
p. 15.) Moreover, the CMA cautions, although physicians may “opine that the allowable
amount of cannabis does not appear to meet a particular patient‟s medical needs,” they
may do so only if the physician “has a reasonable basis for such an opinion.” (Id., at
p. 16; see also id. at p. 20.) We also observe that although the defendants in Wright,
supra
, 40 Cal.4th 81, and People v. Windus, supra, 165 Cal.App.4th 634 (both mentioned
ante, fn. 8) each secured a recommendation consistent with section 11362.77, subdivision
(b), from a physician who testified accordingly at trial, in both cases the physician was the
same — William Eidelman, M.D., whose professional license was suspended from May
2002 through February 2004. (Windus, supra, at p. 638; Wright, supra, at p. 86.)


In light of the restricted scope of coverage provided by 11362.77, subdivision (b)

(that is, its creation of an exception to the quantity limitations set forth in subdivision (a)
for possession but not for cultivation), and in light of the added obligation this subdivision
places upon a qualified patient‟s ability to argue that he or she possessed an amount of
marijuana reasonably related to his or her medical needs (that is, the requirement of
obtaining a physician‟s recommendation that the amount set forth in subdivision (a) is
insufficient), we conclude that the MMP burdens, and “takes away” from, rights
established by the CUA.

47

or simply make alterations that have been proved by experience to be warranted.61 And

yet, as demonstrated by the history and case law set forth above, the flexibility to make

desirable or even necessary adjustments to initiative statutes long has been, and remains,

foreclosed by article II, section 10, subdivision (c), and its predecessor incarnations.

As observed earlier, beginning almost immediately after adoption of the initiative

provision in 1911, and continuing through a number of efforts in recent decades, various

proposals have been advanced, and legislative attempts have been made, to change

California‟s constitutional system in order to bring the state in line with our sister

jurisdictions. These efforts have aimed to eliminate the strict limitation on the power of

the Legislature (or at least to moderate that power) by, for example, allowing

amendments that “further the purpose” of the original initiative measure, or allowing

amendments after a moratorium of years, or allowing amendments by a supermajority

vote of both houses. And yet all such efforts have failed.


61

Indeed, commentators have suggested that the combination of (1) the restriction

imposed by article II, section 10, subdivision (c), together with (2) various initiative
measures adopted by California voters during recent decades, including those mandating
spending for programs without providing funding for those programs, has contributed
substantially to the unique budgetary and governance problems faced by this state. (See,
e.g., Joseph, The System Is the Problem with California’s Budget, Orange County
Register (June 5, 2009) [commenting upon both matters]; The Ungovernable State, The
Economist (May 16, 2009) pp. 33-36 [same]; see also Baldassare and Katz, The Coming
Age of Direct Democracy (2008) pp. 15-16 [citing estimates that approximately
77 percent, and possibly as high as 90 percent, of the state‟s general fund is beyond
legislative control due to initiative statutes]; see generally Schrag, California: America‟s
High-Stakes Experiment (2006) pp. 95, 143-145; but see Matsusaka, Direct Democracy
and Fiscal Gridlock: Have Voter Initiatives Paralyzed the California Budget?
(2005) 5
State Pol. & Policy Q. 248, 248, 257-258 [asserting that empirical evidence does not
support the widely held view that initiatives have “locked in” 70 to 90 percent of the state
budget, and further opining that measures enacted by initiatives appear not to pose a
“significant obstacle” to balancing the state budget].)

48

Over the course of the decades during which California has had the initiative

process, the sole substantive alteration to the governing constitutional provision occurred

in 1946, when it was changed to allow the Legislature at least to propose an amendment

to an initiative statute, subject to ratification by the statewide electorate at the ballot.

That minor adjustment to the strict rule of nonamendability highlights and reinforces the

closely circumscribed limits of the Legislature‟s authority in this regard: the Legislature

is powerless to act on its own to amend an initiative statute. Any change in this authority

must come in the form of a constitutional revision or amendment to article II, section 10,

subdivision (c). Therefore, we are compelled to conclude that section 11362.77

impermissibly amends the CUA and, as we explain below, is unconstitutional as applied

in this case.

V.

As observed earlier, after the Court of Appeal concluded that section 11362.77

(together with its quantity limitations) is unconstitutional insofar as this statute burdens a

defense otherwise available under the CUA, that court further held that section 11362.77

“must be severed from the MMP” and hence voided in its entirety. The Attorney General

asserts that the Court of Appeal erred in imposing this remedy. Instead, the Attorney

General argues, although section 11362.77 can have no effect insofar as it would burden

a defense afforded by the CUA, in a defendant‟s attempt to establish that a quantity of

marijuana possessed was reasonable for a person‟s current medical needs, the statute

need not and should not be severed from the MMP and voided in its entirety. The

Attorney General advocates that section 11362.77 should remain an enforceable part of

the MMP, applicable to the extent possible — including to those persons who voluntarily

participate in the program by registering and obtaining identification cards that provide

protection against arrest. Defendant essentially agrees with the Attorney General in this

respect.

49



In this regard, both parties rely upon the decision of the Court of Appeal in San

Diego NORML, supra, 165 Cal.App.4th 798. In that case, counties challenged the

MMP‟s identification card program — specifically, the duty imposed upon counties by

section 11362.72 of the MMP to “implement a program permitting a limited group of

persons . . . who qualify for exemption from California‟s statutes criminalizing certain

conduct with respect to marijuana[,] . . . to apply for and obtain an identification card

verifying their exemption.” (165 Cal.App.4th at p. 808.) These counties claimed that the

MMP‟s identification card program constitutes an impermissible amendment of the CUA.

The appellate court acknowledged that because the CUA contained no provision allowing

amendment by the Legislature, the MMP‟s “identification laws . . . are invalid if they

amend the CUA within the meaning of article II, section 10, subdivision (c).” (San Diego

NORML, supra, 165 Cal.App.4th at p. 829.)

Citing and applying Cooper, supra, 27 Cal.4th 38, 47, and Mobilepark West

Homeowners Assn., supra, 35 Cal.App.4th 32, 43, the appellate court in San Diego

NORML concluded that “the identification card laws [of the MMP] do not improperly

amend the provisions of the CUA.” (San Diego NORML, supra, 165 Cal.App.4th 798,

830.) The court stated:

“The MMP‟s identification card system, by specifying [that] participation in that

system is voluntary and a person may „claim the protections of [the CUA]‟ without

possessing a card (§ 11362.71, subd. (f)), demonstrates the MMP‟s identification card

system is a discrete set of laws designed to confer distinct protections under California

law that the CUA does not provide[,] without limiting the protections the CUA does

provide. For example, unlike the CUA, which did not immunize medical marijuana users

from arrest but instead provided a limited „immunity‟ defense to prosecution under state

law for cultivation or possession of marijuana [citation], the MMP‟s identification card

system is designed to protect against unnecessary arrest. (See § 11362.78 [law

enforcement officer must accept the identification card absent reasonable cause to believe

50

card was obtained or is being used fraudulently].)” (San Diego NORML, supra, 165

Cal.App.4th 798, 830.)



The court in San Diego NORML concluded: “Here, although the legislation that

enacted the MMP added statutes regarding California‟s treatment of those who use

medical marijuana or who aid such users, it did not add statutes or standards to the CUA.

Instead, the MMP‟s identification card is a part of a separate legislative scheme providing

separate protections for persons engaged in the medical marijuana programs, and the

MMP carefully declared that the protections provided by the CUA were preserved

without the necessity of complying with the identification card provisions. (§ 11362.71,

subd. (f).) [In this sense] [t]he MMP, in effect, amended provisions of the Health and

Safety Code regarding regulation of drugs adopted by the Legislature, not provisions of

the CUA. Because the MMP‟s identification card program has no impact on the

protections provided by the CUA, we reject Counties‟ claim that those provisions are

invalidated by article II, section 10, subdivision (c) of the California Constitution.” (San

Diego NORML, supra, 165 Cal.App.4th 798, 831; accord, People v. Hochanadel (2009)

176 Cal.App.4th 997, 1101-1014 [holding that § 11362.775 of the MMP, concerning

collectives or cooperatives, does not constitute an unconstitutional amendment of the

CUA].)

We agree with the parties that the Court of Appeal below erred in concluding that

section 11362.77 must be severed from the MMP and voided in its entirety.

We begin with the fundamental proposition that in resolving a legal claim, a court

should speak as narrowly as possible and resort to invalidation of a statute only if doing

so is necessary. (Dittus v. Cranston (1959) 53 Cal.2d 284, 286 [“Courts should exercise

judicial restraint in passing upon the acts of coordinate branches of government; the

presumption is in favor of constitutionality, and the invalidity of the legislation must be

clear before it can be declared unconstitutional”]; see also, e.g., In re M.S. (1995) 10

Cal.4th 698, 710; Conservatorship of Roulet (1979) 23 Cal.3d 219, 231, fn. 9.)

51

The Court of Appeal provided no reason for its conclusion that section 11362.77

must be severed from the MMP and hence voided in its entirety — and we discern no

principled basis for doing so. A determination that section 11362.77 is unconstitutional

insofar as it might be applied in a manner that burdens a defense authorized by the CUA

does not, in and of itself, require invalidation of the remaining aspects of this statute;

there is no operational or functional reason for such a conclusion. Section 11362.77

continues to have legal significance, and can operate as part of the MMP, even if it

cannot constitutionally restrict a CUA defense.

As both parties argue, the appropriate remedy in the circumstances presented is to

disapprove, or disallow, only the unconstitutional application of section 11362.77,

thereby preserving any residuary constitutional application with regard to the other

provisions of the MMP. (Cf. Walnut Creek Manor v. Fair Employment & Housing Com.

(1991) 54 Cal.3d 245, 266-267.) It seems clear that the Legislature would have preferred

such a result had it foreseen the invalidity of section 11362.77 insofar as the statute

burdens a defense otherwise available under the CUA. Section 11362.82 provides that

“any section, subdivision, sentence, clause, phrase, or portion” of the MMP adjudged

invalid or unconstitutional “shall not affect the validity of the remaining portion[s]” of

the act.62 Although the language of section 11362.82 differs from the severability clause

at issue in Walnut Creek, supra, 54 Cal.3d 245, 267, which expressly called for the

severance of any invalid application of the statute there at issue, the circumstance

nonetheless remains that “ „[a]lthough not conclusive, a severability clause normally calls

for sustaining the valid part of the enactment . . . .‟ ” (Calfarm Ins. Co. v. Deukmejian


62

Section 11362.82 provides: “If any section, subdivision, sentence, clause, phrase,

or portion of this article is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, that portion shall be deemed a separate, distinct, and independent
provision, and that holding shall not affect the validity of the remaining portion thereof.”


52

(1989) 48 Cal.3d 805, 821.) In this regard, and in view of the history set forth in our

opinion in the present case, we are confident that the Legislature would have extended

the severability provisions of section 11362.82 to include invalid applications of the

MMP had it foreseen the circumstances here at issue.

Accordingly, although we disallow the invalid application of section 11362.77 —

that is, insofar as the terms of the statute purport to burden a defense otherwise available

to qualified patients or primary caregivers under the CUA — we conclude that the Court

of Appeal erred in holding that section 11362.77 must be severed from the MMP and

hence voided in its entirety.

VI.

Whether or not a person entitled to register under the MMP elects to do so, that

individual, so long as he or she meets the definition of a patient or primary caregiver

under the CUA, retains all the rights afforded by the CUA. Thus, such a person may

assert, as a defense in court, that he or she possessed or cultivated an amount of

marijuana reasonably related to meet his or her current medical needs (see Trippet, supra,

56 Cal.App.4th 1532, 1549), without reference to the specific quanitative limitations

specified by the MMP.

We conclude as follows: To the extent section 11362.77 (together with its

quantitative limitations) impermissibly amends the CUA by burdening a defense that

would be available pursuant to that initiative statute, section 11362.77 is invalid under

California Constitution article II, section 10, subdivision (c). Nevertheless, it would be

inappropriate to sever section 11362.77 from the MMP and hence void that provision in

53



its entirety. To the extent the judgment of the Court of Appeal purports to sever section

11362.77 from the MMP and to void this statute in its entirety, the judgment is reversed.

In all other respects, the judgment is affirmed.

GEORGE, C. J.


WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

54

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Kelly
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 163 Cal.App.4th 124
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S164830
Date Filed: Janaury 21, 2010
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: Michael L. Schuur, Temporary Judge*

__________________________________________________________________________________

Attorneys for Appellant:

Gloria C. Cohen and Gerald F. Uelman , under appointments by the Supreme Court, for Defendant and Appellant.






__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Donald E. De Nicola, Deputy State Solicitor General, Lawrence M. Daniels,
Ana R. Duarte, Kristofer Jorstad and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

Robert E. Harris, in pro. per., for Proposition 215 as Amicus Curiae.




*Pursuant to California Constitution, article VI, section 21.





Counsel who argued in Supreme Court (not intended for publication with opinion):

Gerald F. Uelman
Santa Clara University School of Law
500 El Camino Real
Santa Clara, CA 95053
(408) 554-5729

Michael R. Johnsen
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2268

Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. The court limited review to the following issues: (1) Does Health & Safety Code section 11362.77 violate the California Constitution by amending the Compassionate Use Act without voter approval? (2) Were there alternative remedies to invalidating section 11362.77 in its entirety?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 01/21/201047 Cal. 4th 1008, 222 P.3d 186, 103 Cal. Rptr. 3d 733S164830Review - Criminal Appealsubmitted/opinion due

PEOPLE v. WOOD (S164211)
PEOPLE v. PHOMPHAKDY (S166565)


Parties
1The People (Plaintiff and Respondent)
Represented by Michael R. Johnsen
Office of the Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA

2Kelly, Patrick K. (Defendant and Appellant)
Represented by Gerald F. Uelmen
University of Santa Clara School of Law
500 El Camino Real
Santa Clara, CA

3Harris, Robert E. (Amicus curiae)
424 First Street
Woodland, CA 95695

4American Civil Liberties Union Foundation (Pub/Depublication Requestor)
Represented by M. Allen Hopper
ACLU Foundation/Drug Law Reform Project
1101 Pacific Avenue, Suite 333
Santa Cruz, CA

5Americans for Safe Access (Pub/Depublication Requestor)
Represented by Joseph David Elford
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA

6Olson, Kimberly R. (Pub/Depublication Requestor)
P.O. Box 1731
Yreka, CA 96097


Opinion Authors
OpinionChief Justice Ronald M. George
ConcurJustice Carlos R. Moreno, Justice Carol A. Corrigan, Justice Joyce L. Kennard, Justice Kathryn M. Werdegar, Justice Marvin R. Baxter, Justice Ming W. Chin

Dockets
Jul 1 2008Petition for review filed
  Respondent The People Deputy Attorney General Michael R. Johnsen
Jul 1 2008Request for depublication (petition for review pending)
  Respondent The People Deputy Attorney General Michael R. Johnsen
Jul 2 2008Record requested
 
Jul 3 2008Received Court of Appeal record
 
Jul 10 2008Opposition filed
  Richard Johnson, to depublication request by respondent People
Jul 15 2008Answer to petition for review filed
  counsel for aplt. (Kelly)
Jul 15 2008Received:
  counsel for aplt. Opposition to depub. request
Jul 23 2008Request for depublication filed (another request pending)
  American for Safe Access, non-party, by Joseph D. Elford, Counsel **request filed with permission**
Jul 23 2008Request for depublication filed (another request pending)
  American Civil Liberties Union Foundation, non-party, by M. Allen Hopper, Counsel ** request filed with permission***
Jul 24 2008Received:
  Received original proof of service from American Civil Liberties Union Foundation, by M. Allen Hopper, Counsel
Jul 31 2008Opposition to depublication request filed
  by Kimberly R. Olson (non-party) to requests for depublication filed July 23, 2008.
Aug 13 2008Petition for review granted; issues limited (criminal case)
  The petition for review is granted. The issues to be briefed and argued are limited to the following: (1) does Health & Safety Code section 11362.77 violate the California Constitution by amending the Compassionate Use Act without voter approval?; and (2) were there alternative remedies to invalidating section 11362.77 in its entirety? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Sep 10 2008Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Gerald F. Uelmen is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Sep 16 2008Request for extension of time filed
  Respondent People Opening Brief/Merits to 10-14-08 ~Deputy Attorney General Michael R. Johnsen
Sep 22 2008Extension of time granted
  The application for extension of time is deemed an application for relief from default, and is granted. The opening brief is to be served and filed by October 14, 2008.
Oct 14 2008Opening brief on the merits filed
  The People Deputy Attorney General Michael R. Johnsen
Nov 13 2008Answer brief on the merits filed
  counsel for aplt.
Dec 2 2008Reply brief filed (case fully briefed)
  Respondent, Deputy Attorney General for The People
Jan 5 2009Received application to file Amicus Curiae Brief
  Robert E. Harris, (non-party) (late filing requesting court's permission to file oversized a/c brief).
Jan 9 2009Permission to file amicus curiae brief granted
  Robert Harris (non-party)
Jan 9 2009Amicus curiae brief filed
  The application of Robert Harris for permission to file an oversized amicus curiae brief is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Oct 1 2009Case ordered on calendar
  to be argued Tuesday, November 3, 2009, at 9:00 a.m., in Berkeley
Oct 14 2009Request for extended media coverage filed
  By The California Channel.
Oct 14 2009Request for extended media coverage filed
  By The California Channel.
Oct 16 2009Request for extended media coverage granted
  The request for extended media coverage, filed by The California Channel on October 14, 2009, is granted subject to the conditions set forth in rule 1.150, California Rules of Court.
Nov 3 2009Cause argued and submitted
 
Jan 19 2010Notice of forthcoming opinion posted
  To be filed on Thursday, January 21, 2010 at 10 am.

Briefs
Oct 14 2008Opening brief on the merits filed
 
Nov 13 2008Answer brief on the merits filed
 
Dec 2 2008Reply brief filed (case fully briefed)
 
Jan 9 2009Amicus curiae brief filed
 
Brief Downloads
application/pdf icon
s164830-background.pdf (13811 bytes) - Background
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s164830_-_petition_for_review.pdf (424805 bytes) - Petition for Review
application/pdf icon
s164830_-_answer_to_petition_for_review.pdf (181877 bytes) - Answer to Petition for Review
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s164830_-_respondent's_opening_brief_on_the_merits.pdf (502042 bytes) - Opening Brief on the Merits
application/pdf icon
s164830_-_defendant's_answer_brief_on_the_merits.pdf (286042 bytes) - Answer Brief on the Merits
application/pdf icon
s164830_-_reply_brief_on_the_merits.pdf (102581 bytes) - Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 2, 2010
Annotated by Kate Hudson

Facts and Background:
In 1996, California Voters adopted the Compassionate Use Act (CUA), which provides an affirmative defense to prosecution for the crimes of possession and cultivation of marijuana, stating: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” The CUA states that the marijuana must be for the patient’s personal medical purposes and that the quantity possessed should be reasonably related to the patient’s current medical needs.

In 2003, the Legislature enacted the Medical Marijuana Program (MPP) § 11362.77 to clarify the scope of the application of the CUA. The MMP added a specific amount of marijuana not to be exceeded. Section 11362.77 is at the center of this case.

Defendant Patrick Kelly had long suffered from various medical ailments that caused him daily pain. Over the course of 10 years, he attempted to treat the pain with different therapies and medications, some of which were very costly. Dissatisfied with this treatment plan, defendant decided to seek a recommendation to use marijuana as permitted by the CUA. In February 2005, he was granted a written recommendation for marijuana use that expired in one year.

Dr. Elting provided the written recommendation, which did not specify a recommending dosage. Because defendant was unable to afford marijuana from a dispensary, he began to grow it at home. In October 2005, the police, acting on a tip from defendant’s neighbor, arrested defendant and searched his home. Deputies seized 12 usable ounces of dried marijuana, along with a scale and a handgun. The amount of marijuana seized, along with the scale and the handgun, lead the deputies to conclude that defendant was selling the marijuana. Defendant was arrested and charged with possessing and cultivating marijuana for sale.

At trial, the jury found defendant guilty for possessing more than 28.5 grams of marijuana, possessing marijuana for sale, and cultivating marijuana under §11362.77. Defendant appealed, arguing that §11362.77 is an unconstitutional amendment to the California Constitution under Article II, section 10, subdivision (c), which precludes legislative amendment of an initiative measure unless the measure explicitly permits such an amendment.

Procedure:
The Court of Appeal held, first, that §11362.77 of the MPP, insofar as it limits the amount of medical marijuana that a person protected by the CUA may possess, constitutes an amendment of the CUA in violation of the California Constitution. Second, the Court of Appeal held that §11362.77 is unconstitutional in its entirety and must be severed from the MPP.

The Supreme Court affirmed the first holding, and reversed the second.

Issue:
Is §11362.77 of the MPP invalid under California Constitution, article II, section 10, subdivision (c), insofar as it amends the CUA without approval of the electorate?

Holding:
Section 11362.77 is an impermissible amendment to the CUA under the California Constitution. However, it would be inappropriate to sever §11362.77 from the MPP and hence void the provision in its entirety.

Reasoning:
A unanimous supreme court reasoned as follows: §11362.77 amends the CUA, and this amendment is impermissible under the California Constitution.

To determine whether §11362.77 amends the CUA, the court looked to both what constitutes an amendment and the legislative history of the CUA. The court stated that for the purposes of article II, section 10, subsection (c), an amendment includes a legislative act that changes an existing initiative statute by taking away from it. To determine whether or not the statue takes away from the CUA, the court analyzed the legislative history of the CUA. The court concluded that voters specifically passed a statute without a numeric limitation, and that the absence of such limitation was purposeful. Thus, §11362.77 constitutes an amendment to the CUA.

The court next turned to the legislative history of the California Constitution. A long history of proposed amendments to the Constitution, perhaps most notably the revision undertaken by the California Constitution Revision Commission in the mid- 1960’s, revealed that voters have specifically not wanted to change article II, section 10, subsection (c) to allow for amendments to statutes without electorate approval. The California Constitution is different from all other state constitutions in its Article II provision, and such uniqueness has withstood various revision cycles.

The court concluded with an invitation to the legislature to start a new amendment process, but did not waver in its belief that under the current Constitution, §11362.77 is an impermissible amendment.

The court reversed the second holding from below, that §11362.77 should be discarded in its entirety. Because certain parts of the MMP program have no impact on the protections provided by the CUA, the court rejected the claim that the provisions are also invalidated by the California Constitution. The court held that the appropriate remedy in this case is to disallow only the unconstitutional application of §11362.77, thereby preserving any residuary constitutional application with regard to the other provisions of the MPP.